Mohan Chand Vs. State
of Uttarakhand [2009] INSC 144 (23 January 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 140 OF 2009
(Arising out of SLP (Crl.) No. 5536 of 2008) Mohan Chand ...Appellant Versus
State of Uttarakhand ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a learned Single Judge of Uttarakhand at
Nainital High Court finding the appellant guilty of offence punishable under
Section 376 of the Indian Penal Code, 1860 (in short the `IPC') and sentencing
him to undergo rigorous imprisonment for seven years. Two persons i.e.
Khemanand and the present appellant filed the appeal before the High Court
which was dismissed by the impugned judgment.
3.
Background
facts in a nutshell are as follows:
On 6.2.1985 the
prosecutrix was sent by her mother to purchase rice from cheap grain shop. The
prosecutrix waited there for sometimes in front of the shop. Ultimately, the
prosecutrix returned to her home without purchasing rice. When her mother saw
her without rice and coming late at home, she scolded and admonished her. The
prosecutrix was again sent to the cheap grain shop and she again found it
closed. When the prosecutrix was in a sad and remorseful mood, the accused
Basant Ballabh (who died during the pendency of appeal) who was known to the
prosecutrix came over there and inquired from her the reason for her remorse.
The accused Basant Ballabh started to console her by saying that her mother was
admonishing her everyday and suggested that they should run away and marry at Purnagiri
temple. The accused, Basant Ballabh also told her that his maternal uncle has a
factory where he would get an employment and earn money and live comfortably.
The accused Basant Ballabh took the prosecutrix to his room where they stayed
throughout the night. The accused Basant Ballabh promised her to marry on the
next day in Purnagiri Temple.
During the
intervening night of 6th/7th February, 1985, accused Basant Ballabh committed
rape on the prosecutrix thrice in the night. On the next day, the prosecutrix
along with accused Basant Ballabh proceeded to the bus station Champawat The
accused Basant Ballabh asked the prosecutrix to go on foot 1 k.m. ahead from
Champawat towards Tanakpur side and wait for him near the Deodar tree from
where he would pick her up in the bus. Following the said instructions, the
prosecutrix proceeded towards the Deodar tree on foot which is ahead of
Champawat, from where she was taken in the bus by the accused Basant Ballahh
and Trilok Singh (who turned Approver) who had also joined hands with accused
Basant Ballabh.
They all proceeded
towards Tanakpur and got down little before Tanakpur from where they proceeded
on foot and reached on Tanakpur-Bareilly road.
They again boarded a
bus going towards the side of Bareilly. The prosecutrix became anxious and
inquired as to where they were going. In reply, the accused told her that they
would first purchase the articles required to perform marriage from Pilibhit
and then would go to the temple.
When they reached at
Pilibhit, the prosecutrix was taken to a liquor shop where the accused
Khemanand used to work as a Salesman. The accused Khemanand was also having an
accommodation there. The accused Basant Ballabh, Trilok Singh and Khemanand
took the prosecutrix inside the room of accused Khemanand where the accused
persons consumed liquor. After finishing the drinks, Trilok Singh and Basant
Ballabh slept on one cot, while Khemanand and the prosecutrix took separate
cots. After sometimes, accused Khemanand went upto the cot of the prosecutrix
and tried to molest her. The prosecutrix resisted his attempts and complained
against accused Khemanand to Basant Ballabh. Accused Basant Ballabh instead of
helping her, asked her to fulfill the desire of the accused Khemanand. Accused
Khemanand subjected the prosecutrix to sexual intercourse forcibly. On 9.2.1985
the prosecutrix was taken to village Tikri where distantly related sister of
Trilok Singh was residing so that they may not be apprehended by the police.
Accused Triok Singh and Basant Ballabh went outside the village to ascertain
whether any report against them has been made or not.
They came to know
that a report has been lodged in the police station. The accused brought the
prosecutrix from village Tikri to Tanakpur. At Pilibhit, accused Basant Ballabh
got down and asked Trilok Singh to send the prosecutrix to Champawat. Trilok
Singh brought the prosecutrix to Tanakpur. Thereafter, accused Trilok Singh
found truck No.USZ-4480 with its driver accused Mohan Chand near a pump at
Tanakpur. Accused Trilok Singh told accused Mohan Chand that the prosecutrix
was a student of class IX and her school is to open the next day, therefore,
she may be taken in the truck. Accused Trilok Singh also paid fare and
instructed accused Mohan Chand that the prosecutrix be made to get down 1 k.m.
before Champawat.
Thereafter accused
Mohan Chand also committed rape upon her. When the truck moved a little
forward, it stopped and an unknown person who was sitting by the side of the
driver also went to the prosecutrix and committed rape upon the prosecutrix.
Accused Mohan Chand made the prosecutrix to get down 1 k.m. before Champawat.
She covered the distance on foot and went straight to the house of accused
Basant Ballabh. A written report Ex.Ka.7 was lodged by Girish Chandra Paneru on
07.02.1985 before the Patti Patwari Talla Charao alleging therein that his
niece, i.e. the prosecutrix is not traceable since 06.02.1985 and that he has
gathered the information that the accused Basant Ballabh has taken her away
from Champawat towards Tanakpur. On the basis of FIR, the Chick FIR Ex.Ka.8 was
prepared. Patti Patwari Devi Datt (PW7) investigated the case. He recorded the
statement of the prosecutrix under Section 161 of the Code of Criminal
Procedure, 1973 (in short the `Code') on 10.02.1985. During the course of
investigation, the prosecutrix gave a written report Ex.Ka.3 and disclosed that
she has been raped by the accused persons. The Investigating Officer sent the
prosecutrix for medical examination in order to ascertain her age and whether
she was subjected to sexual intercourse or not. The investigating officer after
completing the necessary formalities of the investigation submitted the charge
sheet Ex.Ka.13 before the Court.
After completion of
investigation charge sheet was filed and since the accused persons pleaded
innocence trial was held. Prem Lata Tiwari (PW-2) was the principal of the
school where the prosecutrix was studying. PW-4 was the prosecutrix. Trilok
Singh (PW-5) was the accused but later on was made an approver. The trial Court
found the evidence to be sufficient and convicted the accused persons.
In appeal, the basic
stand taken was that at the first instance the name of the appellant was not
stated and, therefore, there was false implication and the conviction should
not have been recorded as the evidence is not sufficient to establish the
accusations. The High Court did not find any substance in the plea and
dismissed the appeal.
4.
The
stand taken before the High Court was reiterated by the appellant.
5.
Learned
counsel for the State on the other hand supported the judgment of the trial
Court and the High Court.
6.
It
is to be noted that the prosecutrix did not know the name of the accused and,
therefore, there was necessity for Test Identification Parade.
The evidence of the
prosecutrix is clear and cogent. In the instant case the accused is not
personally known to the victim and therefore stating his name in the FIR did
not arise. However, she has categorically stated that the rape was committed on
her by the truck driver. After the arrest of the accused he was put in TI
Parade and the victim had correctly identified him. That being so, the
judgments of the trial Court and the High Court do not suffer from any
infirmity to warrant interference.
7.
The
appeal is dismissed.
....................................J.
(Dr. ARIJIT PASAYAT)
.....................................J.
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