MANOJ MISHRA @ CHHOTKAU versus THE STATE OF UTTAR PRADESH
[2021] 8 S.C.R. 707, Supreme Court of India, 2021
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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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 – Appellant
alongwith other accused persons convicted and sentenced u/ss.363,
366, 376-D, 506 and s.4, POCSO Act – Held: Evidence of the
prosecutrix and the medical evidence establish the charge of rape
– However, charge of gang rape is not established with convincing
evidence – Thus, conviction by the trial court, confirmed by High
Court u/s.376-D is modified – Appellant is convicted u/s.376 and
sentenced for the period undergone – Fine and default sentence
imposed by the trial court, unaltered – Conviction u/s.506 is set
aside – Although, conviction and sentence u/ss.363, 366, IPC and
s .4, POCSO Act is confirmed – Protection of Children from Sexual
Offences 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 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
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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]
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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 11-
14][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
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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]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1167 of 2021
From the Judgment and Order dated 14.03.2018 of the High Court
of Judicature at Allahabad, Lucknow Bench in Criminal Appeal No.1102
of 2017.
Anoop Prakash Awasthi, Adv. for the Appellant.
Parmanand Pandey, Ms. Priyanka Singh, Utkarsh Pandey, Advs.
for the Respondent.
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The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. The appellant is before this Court assailing the judgment dated
14.03.2018 passed by the High Court of Judicature at Allahabad, Lucknow
Bench in Criminal Appeal No.1102/2017. Through the said judgment,
the High Court has dismissed the appeal and confirmed the conviction
and sentence ordered to the appellant by the Additional Sessions Court
and Special Judge POCSO Act,Bahraich in C.C. No.18/2014. The
appellant herein was arrayed as Accused No.4 in the said case.
2. The brief facts leading to the conviction and sentence of the
appellant is that the father of the prosecutrix filed a written report dated
09.08.2013 at 22:35 hours before the police alleging therein that one
Ramasre alias Siri had enticed his daughter aged about 14 years on
02.08.2013 and had taken her away. In the said complaint, it was further
alleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkaui.e.
the appellant herein had cooperated with him in the alleged incident. An
FIR was lodged in Crime No.625/2013 under Sections 363 and 366 IPC.
The prosecutrix was found by the police along with Ramasrealias Siri.She
was brought back and subjected to medical examination.  The case was
investigated and a charge sheet was filed under Sections 363, 366, 376
and 506 Indian Penal Code (for short ‘IPC’) as also sections 3 and 4 of
Protection of Children from Sexual Offences Act (for short ‘POCSO
Act’).  The Court had thereafter
framed the charges against the accused.
On the accused denying the charge, trial was conducted.  The father
and mother of the prosecutrix were examined as PW-1 and PW-2
respectively, while the prosecutrix herself was examined as PW-3. Dr.
Rabia Sultan who had conducted the medical examination on the
prosecutrix was examined as PW-4. The Constable Pramod Kumar Shah
who had carried the FIR was examined as PW-5 and the Sub-Inspector
Tara Prasad Pandey who had investigated the case was examined as
PW-6.
3. The trial court having analysed the said evidence which was
tendered before it, also taking into consideration the denial put forth by
the accused while recording the statement under Section 313 of Criminal
Procedure Code (for short ‘Cr.PC’) had arrived at the conclusion that
the charge alleged against the accused was proved.  Accordingly the
accused were sentenced to (i) 3 years rigorous imprisonment with fine
of Rs.3000/- for the offence under Section 363 IPC; (ii)5 years rigorous
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imprisonment with fine of Rs.5,000/-  for the offence under Section 366
IPC;(iii) 20 years rigorous imprisonment with fine of Rs.25,000/- for the
offence under Section 376-D IPC; (iv) 2 years rigorous imprisonment
with fine of Rs.2,000/- under Section 506 IPC and (v) 7 years rigorous
imprisonment with fine of Rs.7,000/- for the offence under Section 4 of
POCSO Act. The default sentence for non-payment of the fine was
also imposed and the sentence for the offence under the said provisions
were ordered to run concurrently through the judgment dated 20.05.2015.
Through the said judgment one of the accused Raksharam was acquitted
on holding that the charges against him were not proved.
4. The appellant had assailed the said judgment before the High
Court in Criminal Appeal No.1102/2017. The learned Judge while
adverting to the evidence tendered before the trial court had reappraised
the same in the background of the contentions that were urged and, in
that light, had arrived at the conclusion that the appellant had raped the
prosecutrix number of times after being enticed away by him. In that
view of the matter the learned Judge was of the opinion that the trial
court had rightly arrived at the conclusion on the basis of the prosecution
evidence 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 passed
by the learned Judge of the High Court is before this Court in this appeal.
5. We have heard Mr. Anoop Prakash Awasthi learned counsel
appearing for the appellant, Mr. Parmanand Pandey learned standing
counsel for the State of Uttar Pradesh and perused the appeal papers.
6. The learned counsel for the appellant while seeking to contend
that the trial court as also the High Court had committed an error in
convicting and upholding the conviction would seek to refer to the
contradictions in the very manner in which the complaint was initiated
and the various statements made by the prosecutrix herself. It is
contended that the criminal proceedings was set in motion by the
complaint dated 09.08.2013 wherein it has been stated that his daughter
has been tricked and enticed, therefore eloped somewhere. When a
statement was recorded on 10.08.2013, he has alleged that Ramasre
alias Siri had enticed his minor daughter and his statements had been
varying from time to time. It is his case that even the prosecutrix has
made contradicting statements with regard to the nature of the incident
as also her age.In that light, it is contended that the entire theory of the
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prosecutrix being kidnapped, enticed or being raped in the manner as
has been put forth is not reliable.  It is contended that even with regard
to the manner in which the prosecutrix had stated of having gone with
Ramasre alias Siri,it only indicates that it was consensual and in any
event the appellant has been named only thereafter when a statement
was recorded under Section 164 Cr.PC. Though in her evidence as PW-
3 she has stated, with regard to the incident; in her cross-examination
she has stated, with regard to the physical relation she had for the first
time which had been told by her to the family but has again stated that
she disclosed the same when she was four months’ pregnant and the
family members enquired her about the same.
7.  The learned counsel therefore contends that neither the
evidence of the parents who were examined as PW-1 and PW-2 nor the
evidence tendered by the prosecutrix as PW-3 was reliable and the trial
court as well as the High Court ought not tohave passed the conviction
and sentence on such evidence. Though PW-4 in her evidence and with
reference to the medical examination report has stated about the
prosecutrix being pregnant and the foetus being of 20-23 weeks, that by
itself cannot establish the charge made against the appellant is his
contention. Alternatively, it is contended that even if the statement of the
prosecutrix about the physical relations of the appellant with her and
that she has filed the complaint when
the appellant had refused to marry
her despite she becoming pregnant is accepted, it only indicates that it
was consensual and when she herself has stated that she was 20 years
and also when PW-4 the doctor in her cross-examination has indicated
that due to the development of her body even if she is stated to be 16-17
years there could be variation and it can be 17-18 years as per general
variations.In such event, the charge would not be sustainable.  Even
otherwise, in the facts and circumstance, the conviction under Section
376-D IPC is not justified and said provision ought not to have been
invoked 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 Pradesh
contends that the trial court as also the High Court has referred to the
evidence available on record.  Though there may be certain discrepancies
in the various statements the same cannot qualify as contradictions and
in that circumstance when PW-1, PW-2 and PW-3 have all stated with
regard to the incident in support of the prosecution and when there is
categorical medical examination to indicate that the prosecutrix was
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PRADESH [A. S. BOPANNA, J.]
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pregnant, the charge would stand established.  It is contended that in
such circumstance when the father of the prosecutrix has indicated the
age as 14 years and the doctor also has indicated the age to be around
16 years,the contention of the consensual sex will not be acceptable.  In
that view he contends that the judgment passed by the trial court as also
the High Court does not call for interference.
9. In the light of the above, we have taken note of the nature of
consideration made by the trial court as also the High Court.  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 PW-1 to PW-3 who have
spoken with regard to the same.  Though reference was made to the
complaint and the statement of PW-1 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 PW-3 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 learned
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 PW-3 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.
10. 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
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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 tothat
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 Raksharamwho 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.
11. From the evidence tendered by PW-2 to PW-3, more
particularly the evidence of PW-4 i.e., the doctor who examined the
prosecutrix it would disclose that she had examined the prosecutrix at 7
pm on 19.08.2013. She has stated that the victim who was unmarried
was fully grown up and on conducting the necessary tests it was seen
that the rupture of the hymen was old and she was found to be 24 weeks
into her pregnancy. The medical report was
exhibited as K-2. The
complementary report dated 24.08.2013 was marked as exhibit K-4. In
the cross-examination she has referred to the age of prosecutrix as 16
to 17 years.Though she has stated that it could be 17 to18 years as per
general variations, no definite opinion to that effect has been given by
her. In the cross-examination she has however stated that the pregnancy
was of 23 weeks. The report of the doctor indicates it to be 23 weeks
while the pathology report gives the status of the single alive foetus of
20 weeks 2 days as on 20.08.2013. 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 thereare
minor discrepancies with regard to the statement made under Section
164 Cr.PC and the evidence tendered by the prosecutrix as PW-3,the
thrust of theallegation has been thatthe appellanthad committed physical
contact with her against her will. In such circumstance, the evidence of
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PRADESH [A. S. BOPANNA, J.]
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the prosecutrix and the medical evidence would establish the charge of
rape.
12. The question which would however arise for our consideration
is as to whether the charge framed against the accused under Section
376 D IPC would be justified and as to whether the case would qualify
to 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 prosecutrix
is not categorical inasmuch as the prosecutrix has alleged that when she
was sitting in her thatched hut, the appellant came after parking his
vehicle (tractor) besides the road and asked for water. At that time, he
asked where her father was and after she told that he had gone out, the
appellant had forced himself upon her. She has further alleged that he
kept doing the wrong act with her for four months and she became
pregnant. When she disclosed the pregnancy and asked the appellant to
marry her, he did notyield. Therefore, 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. It is no doubt true that she refers to the incident on the day
she was said to have been taken away by all the accused.In that regard
except stating that she was carried to the home of a lady who they were
calling as Aunty, and at her place committed sexual act there is no other
evidence available on
record to indicate that the spot was visited in the
course of the investigation and the lady who is alleged to have aided has
either been apprehended or examined. It is also not established that all
of them were seen together or aided with common intention.
13. 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 notinvolved in such
act.  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 the
truthfulness of the incident is highly improbable. The main co-
operation of other co-accused appears to be in enticing the
prosecutrix away but the allegation of specific rape has been
levelled against the present accused-appellant only and that too
four months prior to the incident on one threat or the other. This
also gives a reason for enticing her away and getting her married
to Ram Asrey alias Sirri.
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26. To conclude, the prosecutrix was raped by the accused-
appellant number of times after being enticed away by him and
also before the incident the truthfulness or reliability of her
statement is undoubtful and there is nothing which may negate
the acceptance of her testimony. In the instance, the commission
of alleged crime against the prosecutrix cannot be ruled out.
27. In view of above, it is difficult to comprehend the circumstances
in which the charge of rape and enticement against the accused-
appellant cannot be levelled. The reason given by the trial court
for conviction of the appellant are sufficient enough to hold him
guilty.”
14. 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 Section 363, 366and under Section 4
of POCSO Act and the sentence as ordered thereunder would not call
for interference.
15. Insofar as the charge alleged against the
appellant under Section
506 of IPC, it is noticed that the charge alleged against the appellant is
that on the date referred to i.e 02.08.2013, the appellant threatened to
kill the prosecutrix, the daughter of the complainant and therefore had
committed the offence which is punishable under Section 506 IPC. In
respect of the said charge we do not find that there is any supporting
evidence except the vague statement of the prosecutrix in her evidence
as PW-3 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. There is no other statement or
evidence relating to the incident or the manner in which the threat in its
true sense was put forth. In that view, we are or of the opinion that 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.
MANOJ MISHRA @ CHHOTKAU V. THE STATE OF UTTAR
PRADESH [A. S. BOPANNA, J.]
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16. On arriving at the conclusion that the appellant is liable to be
convicted under Section 376 IPC and not under Section 376 D IPC, the
appropriate sentence to be imposed needs consideration. 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
2013and 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 committed of 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. In that circumstance, we deem it appropriate that
the sentence of 7 years would have been sufficient deterrent to serve
the ends of justice. From the custody certificate dated 05.12.2017 issued
by the Jail Superintendent, District Jail, Bahraich, it is noticed
that the
appellanthas 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 by us except payment of fine. The fine and default sentence as
imposed by the trial court is maintained.
17. In the result we make the following order: -
(i)
The conviction and sentence under Section 363, 366, and
Section 4 of POCSO Act is confirmed. The conviction under
Section 506 IPC is set aside.
(ii)
The conviction order made by the trial court and confirmed
by the High Court under Section 376 D IPC is modified.The
appellant is instead convicted under Section 376 IPC and is
sentenced, for the period undergone. The fine and default
sentenceas imposed by the trial court shall remain unaltered.
(iii)
Since the custody certificate dated 20.09.2013 indicates that
the appellant has undergone sentence for more than 8 years,
the appellant is ordered to be released on payment of fine

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as all the sentences have run concurrently and if he is not
required 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.
MANOJ MISHRA @ CHHOTKAU V. THE STATE OF UTTAR
PRADESH [A. S. BOPANNA, J.]