Manoj Mishra @ Chhotkau vs The State Of Uttar Pradesh on 8 October, 2021


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Supreme Court of India

Manoj Mishra @ Chhotkau vs The State Of Uttar Pradesh on 8 October, 2021

Author: A.S. Bopanna

Bench: M.R. Shah, A.S. Bopanna

                                                                   REPORTABLE

                                      IN THE SUPREME COURT OF INDIA

                                     CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO.1167 OF 2021
                                (Arising out of SLP(Criminal) No. 7828/2019)


                         Manoj Mishra @ Chhotkau                       .…Appellant(s)

                                                      Versus

                         The State of Uttar Pradesh                  ….Respondent(s)



                                                JUDGMENT

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

Signature Not Verified Judge POCSO Act, Bahraich in C.C. No.18/2014. The appellant
Digitally signed by R
Natarajan
Date: 2021.10.08

herein was arrayed as Accused No.4 in the said case.
16:36:43 IST
Reason:

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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 Chhotkau i.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 Ramasre alias 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 PW­1 and PW­2 respectively, while the prosecutrix

herself was examined as PW­3. Dr. Rabia Sultan who had

conducted the medical examination on the prosecutrix was
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examined as PW­4. The Constable Pramod Kumar Shah who

had carried the FIR was examined as PW­5 and the Sub­

Inspector Tara Prasad Pandey who had investigated the case

was examined as PW­6.

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

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 376­D 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 non­payment of the fine was also

imposed and the sentence for the offence under the said

provisions were ordered to run concurrently through the
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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

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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 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
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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 PW­3 she has

stated, with regard to the incident; in her cross­examination

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 PW­1 and PW­2

nor the evidence tendered by the prosecutrix as PW­3 was

reliable and the trial court as well as the High Court ought not

to have passed the conviction and sentence on such evidence.

Though PW­4 in her evidence and with reference to the medical

examination report has stated about the prosecutrix being

pregnant and the foetus being of 20­23 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
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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 PW­4 the doctor in her cross­examination has

indicated that due to the development of her body even if she is

stated to be 16­17 years there could be variation and it can be

17­18 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 376­D 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 PW­1, PW­2 and PW­3 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 pregnant, the charge would stand established. It is
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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 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
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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 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 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

co­accused and got her married to Ramasre alias Siri, by

enticing and taking her away.

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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 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.

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11. From the evidence tendered by PW­2 to PW­3, more

particularly the evidence of PW­4 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 K­2. The

complementary report dated 24.08.2013 was marked as exhibit

K­4. In the cross­examination 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
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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.

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 PW­1 and PW­2 does not establish the

same. The evidence of PW­3 i.e., the prosecutrix is not

categorical in as much 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
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act with her for four months and she became pregnant. When

she disclosed the pregnancy and asked the appellant to marry

her, he did not yield. 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 not involved in such act. The relevant conclusions

read as hereunder:

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“23. It has also been placed before the court that the
other co­accused were real brothers and their father, as
such the truthfulness of the incident is highly
improbable. The main co­operation of other co­accused
appears to be in enticing the prosecutrix away but the
allegation of specific rape has been levelled against the
present accused­appellant 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.

26. To conclude, the prosecutrix was raped by the
accused­appellant 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 accused­appellant 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

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Section 376 of IPC. However, the conviction handed down by

the trial court and confirmed by the High Court under Section

363, 366 and 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 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. 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.

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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 2013 and the conviction of the appellant was on

20.05.2015. The incident having occurred prior to amendment,

the pre­amended 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
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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

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 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

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and default sentence as 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 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.

……………………….J.

(M.R. SHAH)

……………………….J.

(A.S. BOPANNA)
New Delhi,
October 08, 2021

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