Manoj Mishra @ Chhotkau vs The State of Uttar Pradesh

Held: 1.1 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 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 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 co-accused and got her married to Ramasre alias Siri, by enticing and taking her away. 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. [Paras 9, 10][714-B-H; 715-A-D]

1.2 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 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. 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. 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. 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 Section 376 of IPC. However, the conviction handed down by the trial court and confirmed by the High Court under Sections 363,

366 and under Section 4 of POCSO Act and the sentence as ordered thereunder would not call for interference. [Paras 1114][715-F-H; 716-A, D-F; 717-C-E]

1.3 In respect of the charge against the appellant under Section 506, IPC this Court does 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. 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. [Para 15][717-F-H]

2. 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 pre-amended provision will have to be taken note. The same provides that a person committing 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. The sentence of 7 years would have been sufficient deterrent to serve the ends of justice. 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 except payment of fine. The fine and default sentence as imposed by the trial court is maintained. [Para 16][718-A-E]