Arjun Singh Vs. State
of H.P. [2009] INSC 225 (6 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 224 OF 2009
(Arising out of SLP (Crl.) No.5935 of 2008) Arjun Singh ......Appellant Versus
State of H.P. ......
Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a learned Single Judge of the Himachal
Pradesh High Court upholding the conviction of the appellant for offences
punishable under Sections 376, 511, 363 and 366 as well as Section 109 of the
Indian Penal Code, 1860 (in short the `IPC'). He was sentenced to undergo
rigorous imprisonment for 7 years, 3 years, 4 years, 5 years and 7 years for
the aforesaid offences alongwith fine with default stipulation.
3.
Prosecution
version as unfolded during trial is as follows:
On 18.7.1999, the
victim (PW10) boarded the bus to Shimla from Solan. When the bus bearing
registration No. HP-12-4113 reached near petrol pump (HIMFED) situated near Nav
Bahar towards Chotta Shimla, all the passengers got down, except the
prosecutrix and accused-appellant Arjun Singh. Accused Arjun Singh committed
forcible sexual intercourse with the prosecutrix against her will and without
her consent. The victim was kidnapped by the accused who was minor at the time
of kidnapping in bus No.HP-12-4113 from Solan. The accused had induced the
prosecutrix that he would marry her after reaching Nalagarh. The FIR was
registered.
Thereafter the
investigation was carried out and the challan was put in the Court. The
appellant was charged for offences punishable under Sections 376, 511, 366 and
109 of the Indian Penal Code. The prosecution examined 15 witnesses to prove
its case. The appellant had examined Shri Arvind Sharma (DW 1) as defence
witness. The learned Additional Sessions Judge, Solan, convicted and sentenced
the accused as stated above. The sentences were directed to run concurrently.
It is to be noted that two persons faced trial for the aforesaid offences i.e.
appellant who was the conductor of the vehicle, and one Daler Singh who was the
driver of the vehicle. Since accused persons abjured guilt, trial was held. The
trial court placed reliance on the evidence of the prosecutrix (PW1) and her
mother (PW 3). As a plea relating to the age of the prosecutrix to show that
she was a consenting party was taken, the person who had issued the date of
birth certificate was examined as PW 4. According to the said certificate the
date of birth was 19th October, 1984. She was admitted to the school on 1st
April, 1997 and had left it on 24th October, 1998. The trial Court held that
the age of the victim was less than 16 years and placed reliance on the
documents produced. It was also submitted by the accused persons that no rape
has been committed. This plea also was rejected by the trial court.
Accordingly the trial
court while holding the appellant guilty, acquitted co-accused. As noted above,
appeal before the High Court was dismissed.
4.
In
support of the appeal the stand taken before the trial court and the High Court
were reiterated.
5.
Learned
counsel for the respondent-State supported the judgment of the High Court.
6.
So
far as the age aspect is concerned in Vishnu v. State of Maharashtra [2006(1)
SCC 283] it was inter alia held as follows:
"20. It is urged
before us by Mr Lalit that the determination of the age of the prosecutrix by
conducting ossification test is scientifically proved and, therefore, the
opinion of the doctor that the girl was of 18-19 years of age should be accepted.
We are unable to accept this contention for the reasons that the expert medical
evidence is not binding on the ocular evidence.
The opinion of the
Medical Officer is to assist the court as he is not a witness of fact and the
evidence given by the Medical Officer is really of an advisory character and
not binding on the witness of fact."
7.
In
State of Chhattisgarh v. Lekhram [2006(5) SCC 736] it was held that the
register maintained in a school is admissible evidence to prove the date of
birth of the person concerned in terms of Section 35 of the Indian Evidence
Act, 1872 (in short `Evidence Act'). It may be true that in the entry of the
school register is not conclusive but it has evidentiary value.
8.
Learned
counsel for the appellant has submitted that the evidence of the Doctor clearly
rules out the commission of rape. The Medical officer (PW 9) has stated that
rape had not been committed and sexual intercourse had not taken place.
9.
The
offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the
human body. In that Chapter, there is a separate heading for `Sexual offence',
which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is
defined in Section 375. Sections 375 and 376 have been substantially changed by
Criminal Law (Amendment) Act, 1983, and several new sections were introduced by
the new Act, i.e. 376-A, 376- B, 376-C and 376-D. The fact that sweeping
changes were introduced reflects the legislative intent to curb with iron hand,
the offence of rape which affects the dignity of a woman. The offence of rape
in its simplest term is `the ravishment of a woman, without her consent, by
force, fear or fraud', or as `the carnal knowledge of a woman by force against
her will'.
`Rape' or `Raptus' is
when a man hath carnal knowledge of a woman by force and against her will (Co.
Litt. 123-b); or as expressed more fully,' rape is the carnal knowledge of any
woman, above the age of particular years, against her will; or of a woman
child, under that age, with or against her will' (Hale PC 628). The essential
words in an indictment for rape are rapuit and carnaliter cognovit; but
carnaliter cognovit, nor any other circumlocution without the word rapuit, are
not sufficient in a legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a
(Hale PC 628). In the crime of rape, `carnal knowledge' means the penetration
to any the slightest degree of the organ alleged to have been carnally known by
the male organ of generation (Stephen's "Criminal Law" 9th Ed.
p.262). In `Encyclopoedia of Crime and Justice' (Volume 4, page 1356) it is
stated "......even slight penetration is sufficient and emission is
unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition)
Volume 12, it is stated that even the slightest degree of penetration is
sufficient to prove sexual intercourse. It is violation with violence of the
private person of a woman- an-outrage by all means. By the very nature of the
offence it is an obnoxious act of the highest order.
10.
In
the instant case though the rape does not appear to have been committed but the
attempt to commit the rape is clearly established. That being so the conviction
for offence punishable under Section 376 IPC is not made out but the offence
punishable under Section 511 IPC is clearly made out. So far as the offence
under Sections 365 and 366 IPC are concerned the trial court and the high Court
have analysed the evidence in great detail.
We find no infirmity
in the conclusion to warrant interference.
11.
Under
Section 109 the abettor is liable to the same punishment which may be inflicted
on the principal offender; (1) if the act of the latter is committed in
consequence of the abetment and (2) no express provision is made in the IPC for
punishment for such an abetment. This section lays down nothing more than that
if the IPC has not separately provided for the punishment of abetment as such
then it is punishable with the punishment provided for the original offence.
Law does not require instigation to be in a particular form or that it should
only be in words. The instigation may be by conduct. Whether there was
instigation or not is a question to be decided on the facts of each case. It is
not necessary in law for the prosecution to prove that the actual operative cause
in the mind of the person abetting was instigation and nothing else, so long as
there was instigation and the offence has been committed or the offence would
have been committed if the person committing the act had the same knowledge and
intention as the abettor.
The instigation must
be with reference to the thing that was done and not to the thing that was
likely to have been done by the person who is instigated.
It is only if this
condition is fulfilled that a person can be guilty of abetment by instigation.
Further the act abetted should be committed in consequence of the abetment or
in pursuance of the conspiracy as provided in the Explanation to Section 109. Under
the Explanation an act or offence is said to be committed in pursuance of
abetment if it is done in consequence of (1) instigation (b) conspiracy or (c)
with the aid constituting abetment.
Instigation may be in
any form and the extent of the influence which the instigation produced in the
mind of the accused would vary and depend upon facts of each case. The offence
of conspiracy created under Section 120A is bare agreement to commit an
offence. It has been made punishable under Section 120B. The offence of
abetment created under the second clause of Section 107 requires that there
must be something more than mere conspiracy. There must be some act or illegal
omission in pursuance of that conspiracy. That would be evident by Section 107
(secondly), "engages in any conspiracy....for the doing of that thing, if
an act or omission took place in pursuance of that conspiracy". The
punishment for these two categories of crimes is also quite different. Section
109 IPC is concerned only with the punishment of abetment for which no express
provision has been made in the IPC. The charge under Section 109 should,
therefore, be along with charge for murder which is the offence committed in
consequence of abetment. An offence of criminal conspiracy is, on the other
hand, an independent offence. It is made punishable under Section 120B for
which a charge under Section 109 is unnecessary and inappropriate. {See Kehar
Singh and Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883]. Intentional aiding
and active complicity is the gist of offence of abetment.
12.
In
the background of the facts Section 109 IPC has no application.
13.
Above
being the position, we uphold the conviction of the appellant for the offences
punishable under Sections 365, 366 and 511 IPC with the corresponding sentence
as imposed by the trial court and sustained by the High Court. The convictions
in terms of Sections 109 and 376 IPC are set aside. The sentences would run
concurrently.
14.
The
appeal is allowed to the aforesaid extent.
...........................................J.
(Dr. ARIJIT PASAYAT)
.............................................J.
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