REASONED ORDER  IN CRL.A. 961 OF 2006                                      1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 961 OF 2006

ACHHUTA NAND ...... APPELLANT  

VERSUS

STATE OF U.P. ...... RESPONDENT

O R D E R

This  is an  appeal filed  by way  of special  leave is  

directed  against  the  judgment  of  the  Additional  Sessions  

Judge. Bahraich dated 06/07/1991 in ST No. 133/90 whereby the  

accused-appellant has been convicted and sentenced to rigorous  

imprisonment for 10 years and a fine of Rs. 10,000/- for an  

offence punishable under Section 376 of the Indian Penal Code  

and the judgment of the High Court of Judicature at Allahabad  

in  Criminal  Appeal  No.  352  of  1991  dated   13.01.2006  

confirming the aforesaid conviction and sentence.   

The facts leading to the appeal are as under:-

The prosecutrix P.W. 4, aged 12 years at the time of the  

incident,  was  going  with  some  of  her  friends  to  see  her  

maternal uncle and as she reached the field of one Hasnu, the  

appellant  caught  hold  of  her,  dragged  her  into  the  

munjha(field)  and  raped  her.   On  an  alarm  being  raised,  

Bakridi & Jannu reached the place of incident and also saw the  

occurrence.   The  prosecutrix,  accompanied  by  her  uncle,  

thereafter made her way to Police Station, Fakharpur and on

REASONED ORDER  IN CRL.A. 961 OF 2006                                      2

her written report, an FIR under Section 376 of the Indian  

Penal Code [for short 'the IPC'] was registered at 6:20p.m. at  

the Police Station.  The investigation was entrusted to Sub  

Inspector R.K. Verma who proceeded to the spot and prepared  

the site plan and completed the other formalities.  He also  

arranged for the medical examination of the prosecutrix and  

for the recording of her statement under Section 164 of the  

Code of Criminal Procedure by a competent Magistrate.  On the  

completion of the investigation, the appellant was charged for  

an offence under Section 376 of the IPC tried and convicted as  

already mentioned above.

Mr.  Vishwajit  Singh,  the  learned  counsel  for  the  

appellant has argued that from the evidence of P.W. 5 – Dr.  

(Smt.)  Rekha  Srivastava,  the  Medical  Officer  in  charge  of  

P.P.C.  Memorial  Hospital,  Bahraich,  who  had  examined  the  

prosecutrix it was clear that no rape had been committed and  

the doctor had reiterated her earlier statement after she had  

been called for re-examination on 15.04.1991 that as the hymen  

was intact, the question of the prosecutrix having undergone  

sexual intercourse did not arise. He has accordingly, pleaded  

that  in  this  background,  the  statement  of  the  prosecutrix  

could not be relied upon.

The learned counsel for the State has,  however, pointed  

out that while it is true that statement of P.W. 5 – Dr. Rekha  

Srivastava  did  prima  facie show  that  rape  had  not  been

REASONED ORDER  IN CRL.A. 961 OF 2006                                      3

committed  but there  was no  reason whatsoever  to doubt  the  

statement of the prosecutrix, a young girl of 12 years, more  

particularly as there was no evidence on record to show that  

there  was  any  animosity  between  the  families  of  the  

prosecutrix  and the  appellant.  He has  in the  alternative  

prayed that even assuming that a case under Section 376 of the  

IPC  was not made out an attempt to commit rape had indeed  

been made as apparent even from the prosecution evidence.

We have heard the learned counsel for the parties and  

gone through the matter very carefully. We do agree with Mr.  

Vishwajit  Singh  when  he  says  that  in  the  light  of  the  

testimony of P.W. 5 – Dr. (Smt.) Rekha Srivastava there is no  

evidence to suggest that rape had been committed.  At the same  

time, we must accept the statement of the prosecutrix that  

something untoward had happened and that an attempt to commit  

rape had indeed been made.  In her statement, the prosecutrix  

very clearly and graphically stated that as she was on her way  

to her maternal uncle's house she had been accosted on the way  

and pushed into the nearby field whereafter the appellant had  

opened  her  salwar,  taken  off  his  underwear  and  forcibly  

inserted his penis into her vagina causing  great pain and  

had ejaculated as well.  This statement, would, to our mind,  

bring the matter clearly within the mischief of Section 376  

read with Section 511 of the IPC as an attempt to commit rape.

Mr. Vishwajit Singh has, however, argued that at the

REASONED ORDER  IN CRL.A. 961 OF 2006                                      4

worst, the matter would fall within Section 354 of the IPC as  

an attempt to outrage the modesty of the young girl. We beg to  

differ.  We see from the statement of the prosecutrix that  

what happened was beyond a mere attempt to outrage the modesty  

of  the  prosecutrix  as  several  overt  acts  relating  to  an  

attempt to commit rape have been spelt out.  

The question that now arises for our consideration is  

the  sentence  to  be  imposed  upon  the  appellant.   We  are  

informed  by  Mr.  Vishwajit  Singh  that  the  appellant  has  

undergone more than six years of the sentence.  In the event  

that we have absolutely no reason to doubt the statement made  

by the learned counsel, we  convert  the offence to one under  

Section 376/511 of the IPC and reduce the sentence to that  

already  undergone.    However,  the  default  sentence  shall  

remain as it is.  We further direct that the appellant be set  

at liberty forthwith if not required in connection with any  

other case.       

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [DR. B.S. CHAUHAN]

NEW DELHI AUGUST 18, 2009.

REASONED ORDER  IN CRL.A. 961 OF 2006                                      5

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 961 OF 2006

ACHHUTA NAND ...... APPELLANT  

VERSUS

STATE OF U.P. ...... RESPONDENT

O R D E R

We heard the learned counsel for the parties.

Vide  our  separate  reasoned  order,  we  have  

dismissed this appeal.  As per the counsel, the  

appellant has undergone more than six years of the  

sentence. We, accordingly, reduce the sentence to  

that  already  undergone.   However,  the  default  

sentence  shall  remain  as  it  is.   The  appellant  

shall be set at liberty forthwith if not required  

in  connection  with  any  other  case.    

The reasoned order to follow.   

........................J [HARJIT SINGH BEDI]

........................J [Dr. B.S. CHAUHAN]  

NEW DELHI  AUGUST 18, 2009.