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CASE NO.: Appeal (crl.)  629 of 2006

PETITIONER: Om Prakash

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 11/05/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 6111 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.  

       Appellant calls in question legality of the judgment  rendered by a learned Single Judge of the Allahabad High  Court, Lucknow Bench upholding the appellant’s conviction  for offence punishable under Section 376(2)(e) of the Indian  Penal Code, 1860 (in short the ’IPC’) as recorded by learned VI  Additional Sessions Judge, Hardoi and the sentence of 10  years imprisonment as awarded.

We do not propose to mention name of the victim. Section  228-A IPC makes disclosure of identity of victim of certain  offences punishable. Printing or publishing name of any  matter which may make known the identity of any person  against whom an offence under Sections 376, 376-A, 376-B,  376-C or 376-D is alleged or found to have been committed  can be punished. True it is, the restriction does not relate to  printing or publication of judgment by High Court or Supreme  Court. But keeping in view the social object of preventing  social victimisation or ostracism of the victim of a sexual  offence for which Section 228-A has been enacted, it would be  appropriate that in the judgments, be it of this Court. High  Court or lower Court, the name of the victim should not be  indicated, we have chosen to describe her as ’victim’ in the  judgment. The above position was highlighted in State of  Karnataka v. Puttaraja (2004 (1) SCC 475). Prosecution version as unfolded during trial is essentially  as follows:

One day prior to the occurrence i.e. 9.3.1985 the police of  Sursa arrested Ram Saran, husband of the informant (PW-1)  and the challan was brought to the concerned Court on the  day of the occurrence. Om Prakash @ Chhotey (hereinafter  referred to as the ’accused’) who was related to the parents of  the informant, met then in the Court premises. Jaipal (PW-2)  brother of Ram Saran was also there along with the informant  and she was talking to him about bail of her husband.  After  sometime, accused Om Prakash sent PW-2 to find out whether  the challan had come or not. Then at about 3.00 p.m. accused  overpowered the informant and he started raping her in the  veranda of Zila Parishad near the Court.  When the informant

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raised alarm, PW-2 and one Ram Lal came there and they  assaulted Om Prakash who was raping her and they  apprehended him and the accused was taken to the police  station. The informant gave oral information and then Chik  number 126 Exhibit A-1 was recorded and the entry was made  in the general diary and the case was registered. Internal  examination of the body of the informant was done by Dr.  Purnima Srivastava (PW-3) and the medical report is Exhibit  A-2 and the supplementary report is Exhibit A-3. The medical  examination of the accused was done by Dr. P.K. Gangwar  (PW-4) and the report is Exhibit A-4. The underwear of  accused was seized in the police station and the seizure memo  is Exhibit A-6 and the petticoat of the informant was seized  and the seizure memo is Exhibit A-7. The charge of  investigation of the case was given to Shri Mahesh Lal  Vadhuria (PW-6), who prepared the site plan of the place of  occurrence (Exhibit A-8).  The underwear of the accused and  the petticoat of Ramwati were sent for chemical examination  and the report is Exhibit A-21. After completion of  investigation, charge sheet was filed against the accused and  cognizance of the offence was taken and thereafter the case  was committed to the Sessions Court by the Chief Judicial  Magistrate, Hardoi.

Charge was framed against accused Om Prakash @  Chhotey under Section 376 IPC. The accused did not admit  the charge and demanded trial.   

To substantiate its version, prosecution examined the  victim (informant), eye-witness Jaipal (PW-2), Dr. Smt.  Purnima Srivastava (PW-3), Dr. P.K. Gangwar (PW-4), Shri  Uttam Kumar (PW-5), Shri Mahesh Lal Vadhuria (PW-6) and  head constable Shri Jitendra Singh (PW-7).

The statement of accused Om Prakash was recorded  under Section 313 of the Criminal Procedure Code, 1973 (in  short ’Cr.P.C.’). The accused alleged that he was implicated  due to the enmity.  It was stated by him that he had come  from the village along with the brother of the victim and other  persons for taking steps. He even made some attempts in the  police station in the night. He had taken some money for the  purpose. When the challan came, they got down at Bilgram  Chungi and then a quarrel took place amongst the accused,  PW-2 and father of the victim on the question of refund of the  money.  They assaulted him and he was implicated in the  criminal case.  

Considering the evidence more particularly that of the  victim (PW-1) and PW-2 the brother-in-law of the victim and  the evidence of the doctor PW-3, the Trial Court held that the  accusations have been established. Taking note of the  evidence of PW-3, it was held that accused must have known,  and that there is full possibility that victim is pregnant.  Accordingly, by applying the provisions of Section 376(2)(e)  accused was convicted and sentenced to undergo RI for 10  years which is the minimum sentence prescribed.  The Trial  Court held that there was no reason to reduce the minimum  prescribed sentence.   

In appeal before the High Court it was submitted that the  prosecution version is incredible and the trial Court should  not have convicted the accused. The High Court by the  impugned judgment affirmed the conviction and sentence. It  noted that the FIR was lodged immediately, without any delay.  The evidence of the victim was credible and cogent. That itself

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was sufficient to record conviction. In addition was the  evidence of PW-2 an eye-witness. It was, therefore, held that  the prosecution has clearly established that the offence was  committed by the accused.  With reference to the background  facts, it was noted that the accused was in a position to  dominate will of the prosecutrix.  Therefore, the conviction as  recorded was maintained and the appeal was dismissed.

In support of the appeal, learned counsel for the  appellant submitted that the prosecution version is clearly  unbelievable.  It is not believable that the accused who had  gone to help the victim’s husband to be released on bail would  commit rape on her, that too in broad day light. In any event,  it was submitted that the requirements of Section 376(2)(e)  were not proved.

Per contra, learned counsel for the State submitted that  prosecution version has been clearly established by the cogent  evidence not only by prosecution but also by PW-2 an eye- witness.  It is to be noted that the appellant was caught red- handed and was taken to police station where immediately FIR  was lodged.

So far as the applicability of Section 376(2)(e) is  concerned, it is submitted that the doctor has clearly stated  that the victim was six months pregnant, and it could be  known from the external appearance. The Trial Court had  rightly observed that the accused must have known the victim  was pregnant and there is full possibility in that regard.   Though the High Court has not dealt with this aspect, it has  clearly noted that the accused was in a position to dominate  the will of the victim.

It is settled law that the victim of sexual assault is not  treated as accomplice and as such, her evidence does not  require corroboration from any other evidence including the  evidence of a doctor. In a given case even if the doctor who  examined the victim does not find sign of rape, it is no ground  to disbelieve the sole testimony of the prosecutrix. In normal  course a victim of sexual assault does not like to disclose such  offence even before her family members much less before  public or before the police. The Indian women has tendency to  conceal such offence because it involves her prestige as well as  prestige of her family. Only in few cases, the victim girl or the  family members has courage to go before the police station  and lodge a case. In the instant case the suggestion given on  behalf of the defence that the victim has falsely implicated the  accused does not appeal to reasoning. There was no apparent  reason for a married woman to falsely implicate the accused  after scatting her own prestige and honour.  

Of late, crime against women in general and rape in  particular is on the increase. It is an irony that while we are  celebrating women’s rights in all spheres, we show little or no  concern for her honour. It is a sad reflection on the attitude of  indifference of the society towards the violation of human  dignity of the victims of sex crimes. We must remember that a  rapist not only violates the victim’s privacy and personal  integrity, but inevitably causes serious psychological as well as  physical harm in the process. Rape is not merely a physical  assault -- it is often destructive of the whole personality of the  victim. A murderer destroys the physical body of his victim, a  rapist degrades the very soul of the helpless female. The  Court, therefore, shoulder a great responsibility while trying  an accused on charges of rape. They must deal with such

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cases with utmost sensitivity. The Courts should examine the  broader probabilities of a case and not get swayed by minor  contradictions or insignificant discrepencies in the statement  of the prosecutrix, which are not of a fatal nature, to throw out  an otherwise reliable prosecution case. If evidence of the  prosecutrix inspires confidence, it must be relied upon without  seeking corroboration of her statement in material particulars.  If for some reason the Court finds it difficult to place implicit  reliance on her testimony, it may look for evidence which may  lend assurance to her testimony, short of corroboration  required in the case of an accomplice. The testimony of the  prosecutrix must be appreciated in the background of the  entire case and the trial Court must be alive to its  responsibility and be sensitive while dealing with cases  involving sexual molestations.  This position was highlighted  in State of Punjab v. Gurmeet Singh (1996 (2) SCC 384).   

A prosecutrix of a sex-offence cannot be put on par with  an accomplice. She is in fact a victim of the crime. The  Evidence Act nowhere says that her evidence cannot be  accepted unless it is corroborated in material particulars. She  is undoubtedly a competent witness under Section 118 and  her evidence must receive the same weight as is attached to an  injured in cases of physical violence.  The same degree of care  and caution must attach in the evaluation of her evidence as  in the case of an injured complainant or witness and no more.  What is necessary is that the Court must be conscious of the  fact that it is dealing with the evidence of a person who is  interested in the outcome of the charge levelled by her. If the  Court keeps this in mind and feels satisfied that it can act on  the evidence of the prosecutrix.  There is no rule of law or  practice incorporated in the Indian Evidence Act, 1872 (in  short ’Evidence Act’) similar to illustration (b) to Section 114  which requires it to look for corroboration. If for some reason  the Court is hesitant to place implicit reliance on the  testimony of the prosecutrix it may look for evidence which  may lend assurance to her testimony short of corroboration  required in the case of an accomplice. The nature of evidence  required to lend assurance to the testimony of the prosecutrix  must necessarily depend on the facts and circumstances of  each case. But if a prosecutrix is an adult and of full  understanding the Court is entitled to base a conviction on her  evidence unless the same is own to be infirm and not  trustworthy. If the totality of the circumstances appearing on  the record of the case discloses that the prosecutrix does not  have a strong motive to falsely involve the person charged, the  Court should ordinarily have no hesitation in accepting her  evidence. This position was highlighted in State of  Maharashtra v. Chandraprakash Kewalchand Jain (1990 (1)  SCC 550).   

Sub-section (2) of Section 376 makes some special case  of rape punishable with more stringent punishment. Sub- section (2) Section 376 reads as follows: "376(2) Whoever,--  (a)  being a police officer commits rape\027   (i)     within the limits of the police station  to which he is appointed; or   (ii)   in the premises of any station house  whether or not situated in the police  station to which he is appointed; or   (iii)   on a woman in his custody or in me

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custody of a police officer  subordinate to him; or   (b)  being a public servant, takes advantage of  his official position and commits rape on a  woman in his custody as such public servant  or in the custody of a public servant  subordinate to him; or   (c)  being on the management or on the staff of  a jail, remand home or other place of custody  established by or under any law for the time  being in force or of a woman’s or children’s  institution lakes advantage of his official  position and commits rape on any inmate of  such jail, remand home, place or institution;  or   (d)  being on the management or on the staff of  a hospital, takes advantage of his official  position and commits rape on a woman in that  hospital; or   (e) commits rape on a woman knowing her to  be pregnant; or   (f)   commits rape on a woman when she is  under twelve years of age; or   (g) commits gang rape,

shall be punished with rigorous imprisonment  for a term which shall not be less than ten  years but which may be for life and shall also  be liable to fine."

One of the categories which attracts more stringent  punishment is the rape on a woman who is pregnant.  In such  cases where commission of rape is established for operation of  Section 376(2)(e) the prosecution has to further establish that  accused knew the victim to be pregnant.  In the instant case  there was no such evidence led. The Trial Court came to the  conclusion that there was "full possibility" of the accused  knowing it.  There is a gulf of difference between possibility  and certainty. While considering the case covered by Section  376(2)(e) what is needed to be seen is whether evidence  establishes knowledge of the accused. Mere possibility of  knowledge is not sufficient.  When a case relates to one where  because of the serious nature of the offence, as statutorily  prescribed, more stringent sentence is provided, it must be  established and not a possibility is to be inferred.  The  language of Section 376(2)(e) is clear.  It requires prosecution  to establish that the accused knew her to be pregnant.  This is  clear from the use of the expression "knowing her to be  pregnant".  This is conceptually different that there is a  possibility of his knowledge or that probably he knew it.   Positive evidence has to be adduced by the prosecution about  the knowledge. In the absence of any material brought on  record to show that the accused knew the victim to be  pregnant Section 376(2)(e) IPC cannot be pressed into service.   To that extent the judgment of the Courts below are  unsustainable.  However, minimum sentence prescribed under  Section 376(1) IPC is clearly applicable.

With the modification of sentence by reduction from 10

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years to 7 years, the appeal is dismissed.