Om Prakash Vs. State of U.P. - Court Judgment

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criminal - rape - section 376 (1) and 376 (2) (e) of indian penal code, 1860 - appellant charged for raping victim - trial court convicted appellant under section 376 (2) (e) and sentenced him to 10 years of rigorous imprisonment - on appeal high court upheld conviction and sentence - appeal - appellant contended that prosecution version of incident unbelievable and requirement of section 376 (2) (e) not proved - contended that he was falsely implicated by victim - appellant was in position to dominate will of accused - victim of sexual assault is not treated as an accomplice and her evidence does not require corroboration including evidence of doctor - no apparent reason for married woman to falsely implicate accused after scattering her own prestige and honour - for implicating accused under section 376 (2) (e) evidence must establish knowledge of accused that victim was pregnant - appellant cannot be convicted under section 376 (2) (e) in absence of material evidence to show that appellant knew victim to be pregnant - appellant liable to be convicted under section 376 (1) and sentence reduced to seven years. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 482: [dr. arijit pasayat & tarun chatterjee, jj] inherent powers held, section 482 does not confer any new powers on the high court. it only saves the inherent power which the court possessed before the enactment of the code. it envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the code; (ii) to prevent abuse of the process of court, and (ii) to otherwise secure the ends of justice. it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. no legislative enactment dealing with procedure can provide for all cases that may possibly arise. courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. that is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the high courts. all courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliauid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). while exercising powers under the section, the court does not function as a court of appeal or revision. inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. it is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. it would be an abuse of process of the court, to allow any action which would result in injustice and prevent promotion of justice, in exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice. when no offence is disclosed by the report, the court may examine the question of fact. when a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. the powers possessed by the high court under section 482 of the code are very wide and the very plenitude of the power requires great caution in its exercise. court must be careful to see that its decision in exercise of this power is based on sound principles. the inherent power should not be exercised to stifle a legitimate prosecution. the high court being the highest court of a state should normally refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. of course, no hard and fast rule can be laid down in regard to cases in which the high court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. courts have all such powers as are necessary to do right & to undo wrong in course of administration of justice on principle that when the law gives a person anything it gives him that without which it cannot exist. -- section 482:quashing of proceedings - offence under section 306 i.p.c., - abetment to commit suicide - victim committed suicide having been insulted and humiliated by utterances made by accused - suicide note clearly referred to background in which victim took extreme step of taking away his own life - further, acts of accused-appellants and the roles played by them were also referred in the suicide note held, high court rightly rejected the prayer of exercise of power under section 482 of the code. the observations made by high court and the supreme court shall not be construed to be determinative factor in the trial. - it was, therefore, held that the prosecution has clearly established that the offence was committed by the accused. 8. in support of the appeal, learned counsel for the appellant submitted that the prosecution version is clearly unbelievable. 9. 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. 10. 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. 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. 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. 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. 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 the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix. 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. however, minimum sentence prescribed under section 376(1) ipc is clearly applicable.arijit pasayat, j.1. leave granted. 2. 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.3. we do not propose to mention name of the victim. section 228a 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, 376a, 376b, 376c or 376d 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 228a 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 crilj579 .4. 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 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. 5. 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.6. 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. 7. 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 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.8. 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.9. 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.10. 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.11. 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. 12. 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 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 crilj1728 . 13. 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 leveled 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. s kewalchand jain : 1990 crilj889 . 14. 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- (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 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.15. 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.16. with the modification of sentence by reduction from 10 years to 7 years, the appeal is dismissed.