REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.           224        OF 2009   (Arising out of SLP (Crl.) No.5935 of 2008)

Arjun Singh  ……Appellant

Versus

State of H.P. …… Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of  the  Himachal  Pradesh  High  Court  upholding  the  conviction  of  the

appellant for offences punishable under Sections 376, 511, 363 and 366 as

well as Section 109 of the Indian Penal  Code, 1860 (in short the ‘IPC’).  He

was  sentenced  to  undergo rigorous  imprisonment  for  7  years,  3  years,  4

years,  5 years and 7 years for the aforesaid offences alongwith fine with

default stipulation.   

3. Prosecution version as unfolded during trial is as follows:

On 18.7.1999, the  victim (PW10) boarded the  bus  to  Shimla from

Solan.  When  the  bus  bearing  registration  No.  HP-12-4113  reached  near

petrol pump (HIMFED) situated near Nav Bahar towards Chotta Shimla, all

the  passengers  got  down,  except  the  prosecutrix  and  accused-appellant

Arjun Singh.  Accused Arjun Singh committed forcible sexual  intercourse

with the prosecutrix against her will and without her consent.  The victim

was kidnapped by the accused who was minor at the time of kidnapping in

bus No.HP-12-4113 from Solan. The accused had induced the prosecutrix

that he would marry her after reaching Nalagarh. The FIR was registered.

Thereafter the investigation was carried out and the challan was put in the

Court.  The appellant was charged for offences punishable under Sections

376, 511, 366 and 109 of the Indian Penal Code.  The prosecution examined

15 witnesses  to  prove its  case.  The appellant  had examined Shri  Arvind

Sharma (DW 1) as defence witness. The learned Additional Sessions Judge,

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Solan, convicted and sentenced the accused as stated above. The sentences

were directed to run concurrently. It is to be noted that two persons faced

trial for the aforesaid offences i.e. appellant who was the conductor of the

vehicle,  and  one  Daler  Singh  who  was  the  driver  of  the  vehicle.  Since

accused persons abjured guilt, trial was held.  The trial court placed reliance

on the evidence of the prosecutrix (PW1) and her mother (PW 3). As a plea

relating to the age of the prosecutrix to show that she was a consenting party

was  taken,  the  person  who  had  issued  the  date  of  birth  certificate  was

examined as PW 4.  According to the said certificate the date of birth was

19th October, 1984. She was admitted to the school on 1st April, 1997 and

had left it on 24th October, 1998.  The trial Court held that the age of the

victim  was  less  than  16  years  and  placed  reliance  on  the  documents

produced.  It was also submitted by the accused persons that no rape has

been committed.  This plea also was rejected by the trial court.

Accordingly  the  trial  court  while  holding  the  appellant  guilty,

acquitted co-accused.  As noted above, appeal before the High Court was

dismissed.  

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4. In support of the appeal the stand taken before the trial court and the

High Court were reiterated.

5. Learned counsel for the respondent-State supported the judgment of

the High Court.

6. So  far  as  the  age  aspect  is  concerned  in  Vishnu v.  State  of

Maharashtra [2006(1) SCC 283] it was inter alia held as follows:

“20. It  is  urged  before  us  by  Mr  Lalit  that  the determination  of  the  age  of  the  prosecutrix  by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept  this  contention  for  the  reasons  that  the  expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact.”

7. In State of Chhattisgarh v.  Lekhram [2006(5) SCC 736] it was held

that the register maintained in a school is admissible evidence to prove the

date of birth of the person concerned in terms of Section 35 of the Indian

Evidence Act,  1872 (in  short ‘Evidence Act’).  It  may be true that  in  the

entry of the school register is not conclusive but it has evidentiary value.   

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8. Learned counsel for the appellant has submitted that the evidence of

the Doctor clearly rules out the commission of rape.  The Medical officer

(PW 9) has stated that rape had not been committed and sexual intercourse

had not taken place.

9. The offence of rape occurs in Chapter XVI of IPC. It is an offence

affecting the human body. In that Chapter, there is a separate heading for

‘Sexual  offence’,  which  encompasses  Sections  375,  376,  376-A,  376-B,

376-C, and 376-D. ‘Rape’ is defined in Section 375. Sections 375 and 376

have been substantially changed by Criminal Law (Amendment) Act, 1983,

and several new sections were introduced by the new Act, i.e. 376-A, 376-

B,  376-C and  376-D.   The  fact  that  sweeping  changes  were  introduced

reflects  the  legislative intent  to  curb with  iron hand,  the offence of  rape

which affects the dignity of a woman. The offence of rape in its simplest

term is ‘the ravishment of a woman, without her consent, by force, fear or

fraud’, or as ‘the carnal knowledge of a woman by force against her will’.

‘Rape’ or ‘Raptus’ is when a man hath carnal knowledge of a woman by

force and against her will (Co. Litt. 123-b); or as expressed more fully,’ rape

is the carnal knowledge of any woman, above the age of particular years,

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against her will; or of a woman child, under that age, with or against her

will’ (Hale PC 628). The essential words in an indictment for rape are rapuit

and  carnaliter  cognovit;  but  carnaliter  cognovit,  nor  any  other

circumlocution without the word rapuit, are not sufficient in a legal sense to

express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of

rape, ‘carnal knowledge’ means the penetration to any the slightest degree

of  the  organ alleged to  have been carnally  known by the male organ of

generation (Stephen’s “Criminal Law” 9th Ed. p.262). In ‘Encyclopoedia of

Crime  and  Justice’  (Volume  4,  page  1356)  it  is  stated  “......even  slight

penetration  is  sufficient  and  emission  is  unnecessary”.  In  Halsbury’s

Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that

even  the  slightest  degree  of  penetration  is  sufficient  to  prove  sexual

intercourse. It is violation with violence of the private person of a woman-

an-outrage by all means. By the very nature of the offence it is an obnoxious

act of the highest order.  

10. In the  instant  case  though  the  rape  does  not  appear  to  have  been

committed but the attempt to commit the rape is clearly established.  That

being so the conviction for offence punishable under Section 376 IPC is not

made out but the offence punishable under Section 511 IPC is clearly made

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out.  So far as the offence under Sections 365 and 366 IPC are concerned

the trial court and the high Court have analysed the evidence in great detail.

We find no infirmity in the conclusion to warrant interference.   

11. Under Section 109 the abettor is liable to the same punishment which

may be inflicted on the principal  offender;   (1) if  the act of the latter is

committed in consequence of the abetment and (2) no express provision is

made in the IPC for punishment for such an abetment.  This section lays

down nothing more than that if the IPC has not separately provided for the

punishment of abetment as such then it is punishable with the punishment

provided for the original offence.  Law does not require instigation to be in

a particular form or that it should only be in words.  The instigation may be

by conduct.  Whether there was instigation or not is a question to be decided

on the facts of each case.  It is not necessary in law for the prosecution to

prove that the actual operative cause in the mind of the person abetting was

instigation and nothing else, so long as there was instigation and the offence

has been committed or the offence would have been committed if the person

committing the act  had the same knowledge and intention as the abettor.

The instigation must be with reference to the thing that was done and not to

the thing that was likely to have been done by the person who is instigated.

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It is only if this condition is fulfilled that a person can be guilty of abetment

by instigation.  Further the act abetted should be committed in consequence

of  the  abetment  or  in  pursuance  of  the  conspiracy  as  provided  in  the

Explanation to Section 109.  Under the Explanation an act or offence is said

to be committed in pursuance of abetment if it is done in consequence of (1)

instigation  (b)  conspiracy  or  (c)  with  the  aid  constituting  abetment.

Instigation may be in any form and the extent of the influence which the

instigation  produced in  the mind of  the accused would vary and depend

upon facts of each case.  The offence of conspiracy created under Section

120A is bare agreement to commit an offence. It has been made punishable

under Section 120B.   The offence of  abetment  created  under  the second

clause of Section 107 requires that there must be something more than mere

conspiracy.  There must be some act or illegal omission in pursuance of that

conspiracy. That would be evident by Section 107 (secondly), “engages in

any conspiracy....for the doing of that thing, if an act or omission took place

in pursuance of that conspiracy”.  The punishment for these two categories

of crimes is also quite different.  Section 109 IPC is concerned only with the

punishment of abetment for which no express provision has been made in

the IPC.  The charge under Section 109 should, therefore,  be along with

charge  for  murder  which  is  the  offence  committed  in  consequence  of

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abetment.   An  offence  of  criminal  conspiracy  is,  on  the  other  hand,  an

independent offence. It is made punishable under Section 120B for which a

charge  under  Section  109  is  unnecessary  and  inappropriate.  {See  Kehar

Singh and Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883].  Intentional

aiding and active complicity is the gist of offence of abetment.   

12. In the background of the facts Section 109 IPC has no application.  

13. Above being the position, we uphold the conviction of the appellant

for the offences punishable under Sections 365, 366 and 511 IPC with the

corresponding sentence as imposed by the trial court and sustained by the

High Court.  The convictions in terms of Sections 109 and 376 IPC are set

aside.  The sentences would run concurrently.

14. The appeal is allowed to the aforesaid extent.

………..................................J. (Dr. ARIJIT PASAYAT)

…….......................................J. (ASOK KUMAR GANGULY)

New Delhi, February 06, 2009         

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