LexARJUN SINGH versus STATE OF H.P.
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[2009] 1 S.C.R. 983 ARJUN SINGH A " -+ v. STATE OF H.P. (Criminal Appeal No. 224 of 2009) FEBRUARY 06, 2009 B [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.) Penal Code, 1860: ss.376, 511, 365, 366, 109 - Conviction under, by trial c Court - Affirmed by High Court - On appeal, Held: Commission of rape was not established, however attempt to rape was clearly established- Hence, conviction under s.376 is not proper- However, conviction under s.511 is made out D -) - Regarding offence under ss.365 and 366, courts below analysed the evidence in detail - There was no infirmity in its conclusion to warrant interference - In the background of facts, s. 109 is also not applicable. s. 109 - Applicability of. E s.109 and s.120A - Distinction between. Words and Phrases: 'abetment' and 'rape' - Meaning of. Prosecution case was the appellant committed forcible sexual intercourse with the prosecutrix against F - her will and without her consent. He was charged for offences under ss. 376, 511, 365, 366 and 109 IPC. The trial Court held that the age of victim was less than 16 years by placing reliance on the documents produced and held the appellant guilty. The High Court affirmed the G same. Hence the present appeal. ; -~ Partly allowing the appeal, the Court HELD:1. The offence of rape in its simplest term is 983 H 984 SUPREME COURT REPORTS [2009] 1 S.C.R. A 'the ravishment of a woman, without her consent, by r . 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; or as expressed more fully,' rape is B the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will'. In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been c carnally known by the male organ of generation (Para 9) (989-C-F) Vishnu v. State of Maharashtra (2006) 1 SCC 283 and State ofChhattisgarh v. Lekhram (2006) 5 SCC 736, relied on. D ~- 2. 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 E is not made out but the offence punishable under Section 511 IPC is clearly made out. So far as the offence under Sections 365 and 366 IPC are concerned the Trial Court and the High Court had analysed the evidence in great detail. There is no infirmity in the conclusion to warrant interference. [Para 10) (989-H; 990-A-B] ~ F 3.1. Under Section 109 IPC the abettor is liable to the - same punishment which may be inflicted on the principal offender, if the act of the latter is committed in consequence of the abetment and no express provision G is made in the IPC for punishment for such an abetment. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be 1- ~ by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not H necessary in law for the prosecution to prove that the ARJUN SINGH v. STATE OF H.P. 985 - ~ actual operative cause in the mind of the person abetting A 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 B 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. 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 c 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 instigation, conspiracy or with the aid constituting abetment. Instigation may be in any form and the extent D of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. [Para 11) [990-C-H; 991-A] 3.2. The offence of conspiracy created under
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