REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.        140            OF 2009 (Arising out of SLP (Crl.) No. 5536 of 2008)

Mohan Chand ...Appellant

Versus

State of Uttarakhand  ...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  Uttarakhand  at  Nainital  High  Court   finding  the  appellant  guilty  of

offence punishable under Section 376 of the Indian Penal Code, 1860 (in

short the ‘IPC’) and sentencing him to undergo rigorous imprisonment for

seven years. Two persons i.e. Khemanand and the present appellant filed the

appeal  before  the  High  Court  which  was  dismissed  by  the  impugned

judgment.   

3. Background facts in a nutshell are as follows:

On 6.2.1985 the prosecutrix was sent by her mother to purchase rice

from cheap grain shop. The prosecutrix waited there for sometimes in front

of  the  shop.  Ultimately,  the  prosecutrix  returned  to  her  home  without

purchasing rice. When her mother saw her without rice and coming late at

home, she scolded and admonished her. The prosecutrix was again sent to

the cheap grain shop and she again found it closed. When the prosecutrix

was in a sad and remorseful mood, the accused Basant Ballabh (who died

during the  pendency of  appeal)  who was known to the  prosecutrix  came

over there and inquired from her the reason for her remorse. The accused

Basant  Ballabh  started  to  console  her  by  saying  that  her  mother  was

admonishing  her  everyday and suggested  that  they should  run away and

marry at Purnagiri temple. The accused, Basant Ballabh also told her that

his  maternal uncle has a factory where he would get an employment and

earn  money and  live  comfortably.  The  accused  Basant  Ballabh  took  the

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prosecutrix to his room where they stayed throughout the night. The accused

Basant Ballabh promised her to marry on the next day in Purnagiri Temple.

During  the  intervening  night  of  6th/7th February,  1985,  accused  Basant

Ballabh committed rape on the prosecutrix thrice in the night. On the next

day, the prosecutrix along with accused Basant Ballabh proceeded to the

bus station Champawat The accused Basant Ballabh asked the prosecutrix

to go on foot 1 k.m. ahead from Champawat towards Tanakpur side and

wait for him near the Deodar tree from where he would pick  her up in the

bus. Following the said instructions, the prosecutrix proceeded towards the

Deodar tree on foot  which is  ahead of Champawat,  from where she was

taken  in  the  bus  by  the  accused  Basant  Ballahh  and  Trilok  Singh  (who

turned Approver) who had also joined hands with accused Basant Ballabh.

They all proceeded towards Tanakpur and got down little before Tanakpur

from where they proceeded on foot and reached on Tanakpur-Bareilly road.

They  again  boarded  a  bus  going  towards  the  side  of  Bareilly.  The

prosecutrix became anxious and inquired as to where they were going.  In

reply,  the  accused  told  her  that  they  would  first  purchase  the  articles

required to perform marriage from Pilibhit and then would go to the temple.

When they reached at Pilibhit, the prosecutrix was taken to a liquor shop

where the accused Khemanand used to work as a Salesman. The accused

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Khemanand was also having an accommodation there. The accused Basant

Ballabh, Trilok Singh and Khemanand took the prosecutrix inside the room

of accused Khemanand where the accused persons consumed liquor. After

finishing  the  drinks,  Trilok  Singh  and  Basant  Ballabh  slept  on  one  cot,

while Khemanand and the prosecutrix took separate cots. After sometimes,

accused Khemanand went upto the cot of the prosecutrix and tried to molest

her. The prosecutrix resisted his attempts and complained against accused

Khemanand to Basant Ballabh. Accused Basant Ballabh instead of helping

her,  asked  her  to  fulfill  the  desire  of  the  accused  Khemanand.  Accused

Khemanand  subjected  the  prosecutrix  to  sexual  intercourse  forcibly.  On

9.2.1985 the prosecutrix was taken to village Tikri where distantly related

sister of Trilok Singh was residing so that they may not be apprehended by

the  police.  Accused  Triok  Singh  and  Basant  Ballabh  went  outside  the

village to ascertain whether any report against them has been made or not.

They came to know that a report has been lodged in the police station. The

accused brought the prosecutrix from village Tikri to Tanakpur. At Pilibhit,

accused  Basant  Ballabh  got  down  and  asked  Trilok  Singh  to  send  the

prosecutrix  to  Champawat.  Trilok  Singh  brought  the  prosecutrix  to

Tanakpur. Thereafter, accused Trilok Singh found truck No.USZ-4480 with

its driver accused Mohan Chand near a pump at Tanakpur. Accused Trilok

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Singh told accused Mohan Chand that the prosecutrix was a student of class

IX and her school is to open the next day, therefore, she may be taken in the

truck. Accused Trilok Singh also paid fare and instructed accused Mohan

Chand that the prosecutrix  be made to get down 1 k.m. before Champawat.

Thereafter accused Mohan Chand also committed rape upon her. When the

truck moved a little forward, it stopped and an unknown person who was

sitting by the side of the driver also went to the prosecutrix and committed

rape upon the prosecutrix. Accused Mohan Chand made the prosecutrix to

get down 1 k.m. before Champawat. She covered the distance on foot and

went  straight  to  the  house  of  accused  Basant  Ballabh.  A written  report

Ex.Ka.7 was lodged by Girish Chandra Paneru on 07.02.1985 before the

Patti Patwari Talla Charao alleging therein that his niece, i.e. the prosecutrix

is not traceable since 06.02.1985 and that he has gathered the information

that  the  accused  Basant  Ballabh  has  taken  her  away  from  Champawat

towards  Tanakpur.  On  the  basis  of  FIR,  the  Chick  FIR  Ex.Ka.8  was

prepared. Patti Patwari Devi Datt (PW7) investigated the case. He recorded

the statement of the prosecutrix under Section 161 of the Code of Criminal

Procedure, 1973 (in short the ‘Code’) on 10.02.1985. During the course of

investigation, the prosecutrix gave a written report Ex.Ka.3 and disclosed

that she has been raped by the accused persons. The Investigating Officer

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sent the prosecutrix for medical examination in order to ascertain her age

and  whether  she  was  subjected  to  sexual  intercourse  or  not.  The

investigating  officer  after  completing  the  necessary  formalities  of  the

investigation submitted the charge sheet Ex.Ka.13 before the Court.  

After completion of investigation charge sheet was filed and since the

accused persons pleaded innocence trial was held. Prem Lata Tiwari (PW-2)

was the principal of the school where the prosecutrix was studying.  PW-4

was the prosecutrix. Trilok Singh (PW-5) was the accused but later on was

made an approver. The trial Court found the evidence to be sufficient and

convicted the accused persons.   

In appeal, the basic stand taken was that at the first instance the name

of the appellant was not stated and, therefore, there was false implication

and the conviction should not  have been recorded as the evidence is  not

sufficient  to establish  the  accusations.   The High Court  did not  find any

substance in the plea and dismissed the appeal.  

4. The stand taken before the High Court was reiterated by the appellant.

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5. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment of the trial Court and the High Court.  

6. It is to be noted that the prosecutrix did not know the name of the

accused and, therefore, there was necessity for Test Identification Parade.

The evidence of the prosecutrix is clear and cogent. In the instant case the

accused is not personally known to the victim and therefore stating his name

in the FIR did not arise.  However, she has categorically stated that the rape

was committed on her by the truck driver. After the arrest of the accused he

was put in TI Parade and the victim had correctly identified him. That being

so, the judgments of the trial Court and the High Court do not suffer from

any infirmity to warrant interference.  

7. The appeal is dismissed.   

………………………………J. (Dr. ARIJIT PASAYAT)

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

New Delhi, January 23, 2009   

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