MANOJ MISHRA @ CHHOTKAU versus THE STATE OF UTTAR PRADESH on 8 October 2021

MANOJ MISHRA @ CHHOTKAU

v.

THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 1167 of 2021)

OCTOBER 08, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Penal Code, 1860 – ss.363, 366, 376-D, 506 – Appellantalongwith other accused persons convicted and sentenced u/ss.363,366, 376-D, 506 and s.4, POCSO Act – Held: Evidence of theprosecutrix and the medical evidence establish the charge of rape– However, charge of gang rape is not established with convincingevidence – Thus, conviction by the trial court, confirmed by HighCourt u/s.376-D is modified – Appellant is convicted u/s.376 andsentenced for the period undergone – Fine and default sentenceimposed by the trial court, unaltered – Conviction u/s.506 is setaside – Although, conviction and sentence u/ss.363, 366, IPC ands .4, POCSO Act is confirmed – Protection of Children from SexualOffences Act – s.4 – Criminal Law (Amendment) Act, 2018.

Partly allowing the appeal, the Court

Held: 1.1 In so far as the incident based on which the chargewas framed against the accused, more particularly against theappellant, the parents of the prosecutrix and the prosecutrixherself were examined as PW1 to PW3 who have spoken withregard to the same. Though reference was made to the complaintand the statement of PW1 and at the first instance the complainanthaving named Ramasre alias Siri, it was in the circumstance whenhe had noticed that the prosecutrix, i.e. his daughter was not inthe house and had accordingly lodged the complaint on suspicion.It is pursuant to the complaint when the police took action, theprosecutrix and the said Ramasre alias Siri were retrieved bythe police when they were travelling to Mumbai as per the verystatement recorded by the prosecutrix under Section 164 Cr.PC.In that circumstance what would be relevant is the statement

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Aand the evidence tendered by the prosecutrix as PW3 before thetrial court which described the events prior thereto and thecircumstance which forced her to be with Ramasre alias Siri atthat point. Though certain discrepancies were referred to by thecounsel for the appellant in the manner the prosecutrix haddescribed the incident to contend that as per her own statementBthe thatched hut was open from all sides and the act was allegedto be committed during the day time which cannot be probable, itis noticed that the sum and substance of the evidence tenderedby the prosecutrix as PW3 is essentially with regard to the physicalrelationship she had with the appellant due to which she hadCbecome pregnant and this was disclosed to her family membersonly when they had noticed her to be pregnant. She has furtherstated that in that situation when she had insisted on the appellantmarrying her, he had refused, threatened and he had taken thehelp of the co-accused and got her married to Ramasre alias Siri,by enticing and taking her away. In that background, the fact thatDthe appellant had physical relationship with the prosecutrix onmore than one occasion and the prosecutrix had not disclosedthe same to her parents when it had happened for the first timeabout four months earlier but was brought to their notice whenher pregnancy was noticed will have to be viewed from the standEpoint as to whether the charges as framed would stand established.It is no doubt true that the prosecutrix in her deposition hasstated that on the day of the incident the appellant, Ramasre aliasSiri, Nangodiya etc. had caught hold of her. However, there is nospecific indication as to whether the other accused and theappellant had indulged in sexual act along with the appellantFherein or the reference is with regard to that they having assistedthe appellant in enticing and taking her away on the date of thecomplaint so as to marry her of to Ramasre alias Siri. What isalso to be taken note of, is that the said Ramasre alias Siri andNangodiya are siblings being the sons of Raksharam who wasGacquitted by the trial court. To establish common intention ontheir part in furthering the sexual assault committed by theappellant, there is convincing evidence to that effect. [Paras 9,10][714-B-H; 715-A-D]

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1.2 Though there is marginal variation with regard to thenumber of weeks mentioned, the pregnancy was not less than 20weeks and if the same is kept in the backdrop, the statement ofthe prosecutrix that the appellant had intercourse with her forthe first time, four months earlier, which is an approximateindication and that she became pregnant would coincide with theperiod. Though there are minor discrepancies with regard to thestatement made under Section 164 Cr.PC and the evidencetendered by the prosecutrix as PW3, the thrust of the allegationhas been that the appellant had committed physical contact withher against her will. In such circumstance, the evidence of theprosecutrix and the medical evidence would establish the chargeof rape. Insofar as the incident of rape attributed to the appellantit does not disclose that all the accused had committed rape onher or had the common intention and aided the commission. Infact, the very conclusion reached by the High Court itself wouldindicate that the allegation of rape as established by theprosecution is against the appellant and the other accused arenot involved in such act. Further, when the prosecutrix was tracedbased on the complaint lodged by her father all of them were notwith her but she was found only with Ramasre @ Siri. That apart,as noted the other three accused apart from the appellant are thesiblings and their father Raksharam has been acquitted by thetrial court. In that circumstance, the charge of gang rape has notbeen established with convincing evidence. However, havingalready noted that the incident of rape alleged had beenestablished, it would be a case to convict the appellant underSection 376 of IPC. However, the conviction handed down by thetrial court and confirmed by the High Court under Sections 363,366 and under Section 4 of POCSO Act and the sentence asordered thereunder would not call for interference. [Paras 11-14][715-F-H; 716-A, D-F; 717-C-E]

1.3 In respect of the charge against the appellant underSection 506, IPC this Court does not find that there is anysupporting evidence except the vague statement of theprosecutrix in her evidence as PW3 that whenever she shoutedwhen he had attempted to have sexual acts with her, the appellant AB

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Ahad threatened her not to say anything to anyone as otherwise hewould kill her. The conviction and sentence under Section 506imposed by the trial court and affirmed by the High Court is notsustainable and is liable to be set aside. [Para 15][717-F-H]

2. The incident in question is based on the complaint datedB09.08.2013. In this circumstance, though it is noted that Section376 has been amended w.e.f. 21.04.2018 providing for theminimum sentence of 10 years, the case on hand is of 2013 andthe conviction of the appellant was on 20.05.2015. The incidenthaving occurred prior to amendment, the pre-amended provisionwill have to be taken note. The same provides that a personCcommitting rape shall be punished with rigorous imprisonmentfor a term which shall not be less than seven years but which mayextend to imprisonment for life and shall also be liable to fine. Inthe instant case, taking into consideration all facts including thatno material is available on record to indicate that the appellant Dhas any criminal antecedents and that he is also a father of fivechildren and the eldest son is more than 18 years, it appears thatthere is no reason to apprehend that the appellant wouldindulgence similar acts in future. The sentence of 7 yearswould have been sufficient deterrent to serve the ends of justice.The appellant has been in custody from 20.09.2013. If that be theEposition, he has been in custody and served the sentence formore than 8 years which shall be his period of sentence. Assuch he has served the sentence imposed except payment offine. The fine and default sentence as imposed by the trial courtis maintained. [Para 16][718-A-E]FCRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1167 of 2021

From the Judgment and Order dated 14.03.2018 of the High Courtof Judicature at Allahabad, Lucknow Bench in Criminal Appeal No.1102of 2017.G

Anoop Prakash Awasthi, Adv. for the Appellant.

Parmanand Pandey, Ms. Priyanka Singh, Utkarsh Pandey, Advs.for the Respondent.

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. The appellant is before this Court assailing the judgment dated14.03.2018 passed by the High Court of Judicature at Allahabad, LucknowBench in Criminal Appeal No.1102/2017. Through the said judgment,the High Court has dismissed the appeal and confirmed the convictionand sentence ordered to the appellant by the Additional Sessions Courtand Special Judge POCSO Act,Bahraich in C.C. No.18/2014. Theappellant herein was arrayed as Accused No.4 in the said case.

2. The brief facts leading to the conviction and sentence of theappellant is that the father of the prosecutrix filed a written report dated09.08.2013 at 22:35 hours before the police alleging therein that oneRamasre alias Siri had enticed his daughter aged about 14 years on02.08.2013 and had taken her away. In the said complaint, it was furtheralleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkaui.e.the appellant herein had cooperated with him in the alleged incident. AnFIR was lodged in Crime No.625/2013 under Sections 363 and 366 IPC.The prosecutrix was found by the police along with Ramasrealias Siri.Shewas brought back and subjected to medical examination. The case wasinvestigated and a charge sheet was filed under Sections 363, 366, 376and 506 Indian Penal Code (for short ‘IPC’) as also sections 3 and 4 ofProtection of Children from Sexual Offences Act (for short ‘POCSOAct’). The Court had thereafter framed the charges against the accused.On the accused denying the charge, trial was conducted. The fatherand mother of the prosecutrix were examined as PW-1 and PW-2respectively, while the prosecutrix herself was examined as PW-3. Dr.Rabia Sultan who had conducted the medical examination on theprosecutrix was examined as PW-4. The Constable Pramod Kumar Shahwho had carried the FIR was examined as PW-5 and the Sub-InspectorTara Prasad Pandey who had investigated the case was examined asPW-6.

3. The trial court having analysed the said evidence which wastendered before it, also taking into consideration the denial put forth bythe accused while recording the statement under Section 313 of CriminalProcedure Code (for short ‘Cr.PC’) had arrived at the conclusion thatthe charge alleged against the accused was proved. Accordingly theaccused were sentenced to (i) 3 years rigorous imprisonment with fineof Rs.3000/- for the offence under Section 363 IPC; (ii)5 years rigorous A

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Aimprisonment with fine of Rs.5,000/- for the offence under Section 366IPC;(iii) 20 years rigorous imprisonment with fine of Rs.25,000/- for theoffence under Section 376-D IPC; (iv) 2 years rigorous imprisonmentwith fine of Rs.2,000/- under Section 506 IPC and (v) 7 years rigorousimprisonment with fine of Rs.7,000/- for the offence under Section 4 ofPOCSO Act. The default sentence for non-payment of the fine wasBalso imposed and the sentence for the offence under the said provisionswere ordered to run concurrently through the judgment dated 20.05.2015.Through the said judgment one of the accused Raksharam was acquittedon holding that the charges against him were not proved.

4. The appellant had assailed the said judgment before the HighCCourt in Criminal Appeal No.1102/2017. The learned Judge whileadverting to the evidence tendered before the trial court had reappraisedthe same in the background of the contentions that were urged and, inthat light, had arrived at the conclusion that the appellant had raped theprosecutrix number of times after being enticed away by him. In thatDview of the matter the learned Judge was of the opinion that the trialcourt had rightly arrived at the conclusion on the basis of the prosecutionevidence that the appellant was involved in the commission of the crime.The judgment of conviction and sentence was accordingly confirmed.The appellant therefore claiming to be aggrieved by the judgment passedby the learned Judge of the High Court is before this Court in this appeal.E5. We have heard Mr. Anoop Prakash Awasthi learned counselappearing for the appellant, Mr. Parmanand Pandey learned standingcounsel for the State of Uttar Pradesh and perused the appeal papers.

6. The learned counsel for the appellant while seeking to contendFthat the trial court as also the High Court had committed an error inconvicting and upholding the conviction would seek to refer to thecontradictions in the very manner in which the complaint was initiatedand the various statements made by the prosecutrix herself. It iscontended that the criminal proceedings was set in motion by thecomplaint dated 09.08.2013 wherein it has been stated that his daughterGhas been tricked and enticed, therefore eloped somewhere. When astatement was recorded on 10.08.2013, he has alleged that Ramasrealias Siri had enticed his minor daughter and his statements had beenvarying from time to time. It is his case that even the prosecutrix hasmade contradicting statements with regard to the nature of the incidentHas also her age.In that light, it is contended that the entire theory of the prosecutrix being kidnapped, enticed or being raped in the manner ashas been put forth is not reliable. It is contended that even with regardto the manner in which the prosecutrix had stated of having gone withRamasre alias Siri,it only indicates that it was consensual and in anyevent the appellant has been named only thereafter when a statementwas recorded under Section 164 Cr.PC. Though in her evidence as PW-3 she has stated, with regard to the incident; in her cross-examinationshe has stated, with regard to the physical relation she had for the firsttime which had been told by her to the family but has again stated thatshe disclosed the same when she was four months’ pregnant and thefamily members enquired her about the same.

7. The learned counsel therefore contends that neither theevidence of the parents who were examined as PW-1 and PW-2 nor theevidence tendered by the prosecutrix as PW-3 was reliable and the trialcourt as well as the High Court ought not tohave passed the convictionand sentence on such evidence. Though PW-4 in her evidence and withreference to the medical examination report has stated about theprosecutrix being pregnant and the foetus being of 20-23 weeks, that byitself cannot establish the charge made against the appellant is hiscontention. Alternatively, it is contended that even if the statement of theprosecutrix about the physical relations of the appellant with her andthat she has filed the complaint when the appellant had refused to marryher despite she becoming pregnant is accepted, it only indicates that itwas consensual and when she herself has stated that she was 20 yearsand also when PW-4 the doctor in her cross-examination has indicatedthat due to the development of her body even if she is stated to be 16-17years there could be variation and it can be 17-18 years as per generalvariations.In such event, the charge would not be sustainable. Evenotherwise, in the facts and circumstance, the conviction under Section376-D IPC is not justified and said provision ought not to have beeninvoked as it does not qualify to be a gang rape. For all the said reasons,he contends that the judgment is liable to be set aside.

8. The learned standing counsel for the State of Uttar Pradeshcontends that the trial court as also the High Court has referred to theevidence available on record. Though there may be certain discrepanciesin the various statements the same cannot qualify as contradictions andin that circumstance when PW-1, PW-2 and PW-3 have all stated withregard to the incident in support of the prosecution and when there iscategorical medical examination to indicate that the prosecutrix was AB

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Apregnant, the charge would stand established. It is contended that insuch circumstance when the father of the prosecutrix has indicated theage as 14 years and the doctor also has indicated the age to be around16 years,the contention of the consensual sex will not be acceptable. Inthat view he contends that the judgment passed by the trial court as alsothe High Court does not call for interference.B

9. In the light of the above, we have taken note of the nature ofconsideration made by the trial court as also the High Court. In so far asthe incident based on which the charge was framed against the accused,more particularly against the appellant, the parents of the prosecutrixand the prosecutrix herself were examined as PW-1 to PW-3 who haveCspoken with regard to the same. Though reference was made to thecomplaint and the statement of PW-1 and at the first instance thecomplainant having named Ramasre alias Siri, it was in the circumstancewhen he had noticed that the prosecutrix,i.e. his daughter was not in thehouse and had accordingly lodged the complaint on suspicion. It isDpursuant to the complaint when the police took action, the prosecutrixand the said Ramasre alias Siri were retrieved by the police when theywere travelling to Mumbai as per the very statement recorded by theprosecutrix under Section 164 Cr.PC. In that circumstance what wouldbe relevant is the statement and the evidence tendered by the prosecutrixas PW-3 before the trial court which described the events prior theretoEand the circumstance which forced her to be with Ramasre alias Siri atthat point. Though certain discrepancies were referred to by the learnedcounsel for the appellant in the manner the prosecutrix had describedthe incident to contend that as per her own statement the thatched hutwas open from all sides and the act was alleged to be committed duringFthe day time which cannot be probable, it is noticed that the sum andsubstance of the evidence tendered by the prosecutrix as PW-3 isessentially with regard to the physical relationship she had with theappellant due to which she had become pregnant and this was disclosedto 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 theGappellant marrying her,he had refused, threatened and he had taken thehelp of the co-accused and got her married to Ramasre alias Siri, byenticing and taking her away.

10. In that background, the fact that the appellant had physicalrelationship with the prosecutrix on more than one occasion and theHprosecutrix had not disclosed the same to her parents when it had happened for the first time about four months earlier but was brought to theirnotice when her pregnancy was noticed will have to be viewed from thestand 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 onthe day of the incident the appellant, Ramasre alias Siri, Nangodiya etc.had caught hold of her. However, there is no specific indication as towhether the other accused and the appellant had indulged in sexual actalong with the appellant herein or the reference is with regard tothatthey having assisted the appellant in enticing and taking her away on thedate of the complaint so as to marry her of to Ramasre alias Siri. Whatis also to be taken note of, is that the said Ramasre alias Siri and Nangodiyaare siblings being the sons of Raksharamwho was acquitted by the trialcourt. To establish common intention on their part in furthering the sexualassault committed by the appellant, there is convincing evidence to thateffect.

11. From the evidence tendered by PW-2 to PW-3, moreparticularly the evidence of PW-4 i.e., the doctor who examined theprosecutrix it would disclose that she had examined the prosecutrix at 7pm on 19.08.2013. She has stated that the victim who was unmarriedwas fully grown up and on conducting the necessary tests it was seenthat the rupture of the hymen was old and she was found to be 24 weeksinto her pregnancy. The medical report was exhibited as K-2. Thecomplementary report dated 24.08.2013 was marked as exhibit K-4. Inthe cross-examination she has referred to the age of prosecutrix as 16to 17 years.Though she has stated that it could be 17 to18 years as pergeneral variations, no definite opinion to that effect has been given byher. In the cross-examination she has however stated that the pregnancywas of 23 weeks. The report of the doctor indicates it to be 23 weekswhile the pathology report gives the status of the single alive foetus of20 weeks 2 days as on 20.08.2013. Though there is marginal variationwith regard to the number of weeks mentioned,the pregnancy was notless than 20 weeks and if the same is kept in the backdrop,the statementof the prosecutrix that the appellant had intercourse with her for the firsttime, four months earlier, which is an approximate indication and thatshe became pregnant would coincide with the period. Though thereareminor discrepancies with regard to the statement made under Section164 Cr.PC and the evidence tendered by the prosecutrix as PW-3,thethrust of theallegation has been thatthe appellanthad committed physicalcontact with her against her will. In such circumstance, the evidence of AB

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Athe prosecutrix and the medical evidence would establish the charge ofrape.

12. The question which would however arise for our considerationis as to whether the charge framed against the accused under Section376 D IPC would be justified and as to whether the case would qualifyBto be one of gang rape. On this aspect, the evidence of PW-1 and PW-2 does not establish the same. The evidence of PW-3 i.e., the prosecutrixis not categorical inasmuch as the prosecutrix has alleged that when shewas sitting in her thatched hut, the appellant came after parking hisvehicle (tractor) besides the road and asked for water. At that time, heasked where her father was and after she told that he had gone out, theCappellant had forced himself upon her. She has further alleged that hekept doing the wrong act with her for four months and she becamepregnant. When she disclosed the pregnancy and asked the appellant tomarry her, he did notyield. Therefore, insofar as the incident of rapeattributed to the appellant it does not disclose that all the accused hadDcommitted rape on her or had the common intention and aided thecommission. It is no doubt true that she refers to the incident on the dayshe was said to have been taken away by all the accused.In that regardexcept stating that she was carried to the home of a lady who they werecalling as Aunty, and at her place committed sexual act there is no otherevidence available on record to indicate that the spot was visited in theEcourse of the investigation and the lady who is alleged to have aided haseither been apprehended or examined. It is also not established that allof them were seen together or aided with common intention.

13. In fact, the very conclusion reached by the High Court itselfwould indicate that the allegation of rape as established by the prosecutionFis against the appellant and the other accused are notinvolved in suchact. The relevant conclusions read as hereunder:

“23. It has also been placed before the court that the other co-accused were real brothers and their father, as such thetruthfulness of the incident is highly improbable. The main co-Goperation of other co-accused appears to be in enticing theprosecutrix away but the allegation of specific rape has beenlevelled against the present accused-appellant only and that toofour months prior to the incident on one threat or the other. Thisalso gives a reason for enticing her away and getting her marriedHto Ram Asrey alias Sirri.

26. To conclude, the prosecutrix was raped by the accused-appellant number of times after being enticed away by him andalso before the incident the truthfulness or reliability of herstatement is undoubtful and there is nothing which may negatethe acceptance of her testimony. In the instance, the commissionof alleged crime against the prosecutrix cannot be ruled out.

27. In view of above, it is difficult to comprehend the circumstancesin which the charge of rape and enticement against the accused-appellant cannot be levelled. The reason given by the trial courtfor conviction of the appellant are sufficient enough to hold himguilty.”

14. Further,when the prosecutrix was traced based on thecomplaint lodged by her father all of them were not with her but she wasfound only with Ramasre @ Siri. That apart, as noted the other threeaccused apart from the appellant are the siblings and their fatherRaksharam 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 hadbeen established, it would be a case to convict the appellant under Section376 of IPC. However, the conviction handed down by the trial court andconfirmed by the High Court under Section 363, 366and under Section 4of POCSO Act and the sentence as ordered thereunder would not callfor interference.

15. Insofar as the charge alleged against the appellant under Section506 of IPC, it is noticed that the charge alleged against the appellant isthat on the date referred to i.e 02.08.2013, the appellant threatened tokill the prosecutrix, the daughter of the complainant and therefore hadcommitted the offence which is punishable under Section 506 IPC. Inrespect of the said charge we do not find that there is any supportingevidence except the vague statement of the prosecutrix in her evidenceas PW-3 that whenever she shouted when he had attempted to havesexual acts with her, the appellant had threatened her not to say anythingto anyone as otherwise he would kill her. There is no other statement orevidence relating to the incident or the manner in which the threat in itstrue sense was put forth. In that view, we are or of the opinion that theconviction and sentence under Section 506 imposed by the trial courtand affirmed by the High Court is not sustainable and is liable to be setaside.

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A16. On arriving at the conclusion that the appellant is liable to beconvicted under Section 376 IPC and not under Section 376 D IPC, theappropriate sentence to be imposed needs consideration. The incident inquestion 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. 21.04.2018providing for the minimum sentence of 10 years, the case on hand is ofB2013and the conviction of the appellant was on 20.05.2015. The incidenthaving occurred prior to amendment,the pre-amended provision will haveto be taken note. The same provides that a person committed of rapeshall be punished with rigorous imprisonment for a term which shall notbe less than seven years but which may extend to imprisonment for lifeCand shall also be liable to fine. In the instant case, taking into considerationall facts including that no material is available on record to indicate thatthe appellant has any criminal antecedents and that he is also a father offive children and the eldest son is more than 18 years, it appears thatthere is no reason to apprehend that the appellant would indulgencesimilar acts in future. In that circumstance, we deem it appropriate thatDthe sentence of 7 years would have been sufficient deterrent to servethe ends of justice. From the custody certificate dated 05.12.2017 issuedby the Jail Superintendent, District Jail, Bahraich, it is noticed that theappellanthas been in custody from 20.09.2013. If that be the position, hehas been in custody and served the sentence for more than 8 yearsEwhich shall be his period of sentence.As such he has served the sentenceimposed by us except payment of fine. The fine and default sentence asimposed by the trial court is maintained.

17. In the result we make the following order: -

(i) The conviction and sentence under Section 363, 366, andFSection 4 of POCSO Act is confirmed. The conviction underSection 506 IPC is set aside.

(ii) The conviction order made by the trial court and confirmedby the High Court under Section 376 D IPC is modified.Theappellant is instead convicted under Section 376 IPC and isGsentenced, for the period undergone. The fine and defaultsentenceas imposed by the trial court shall remain unaltered.

(iii) Since the custody certificate dated 20.09.2013 indicates thatthe appellant has undergone sentence for more than 8 years,the appellant is ordered to be released on payment of fineH

MANOJ MISHRA @ CHHOTKAU V. THE STATE OF UTTARPRADESH [A. S. BOPANNA, J.]

as all the sentences have run concurrently and if he is notrequired to be detained in any other case.

(iv) The appeal is accordingly allowed in part.

(v) Pending application, if any, shall stand disposed of.

Divya Pandey

Appeal partly allowed.

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