MANOJ MISHRA @ CHHOTKAU versus THE STATE OF UTTAR PRADESH

Citation: [2021] 8 S.C.R. 707 · Decided: 08-10-2021 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Case Partly allowed

Judgment (excerpt)

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[2021] 8 S.C.R. 707
707
MANOJ MISHRA @ CHHOTKAU
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 1167 of 2021)
OCTOBER 08, 2021
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Penal Code, 1860 – ss.363, 366, 376-D, 506 – Appellant
alongwith other accused persons convicted and sentenced u/ss.363,
366, 376-D, 506 and s.4, POCSO Act – Held: Evidence of the
prosecutrix and the medical evidence establish the charge of rape
– However, charge of gang rape is not established with convincing
evidence – Thus, conviction by the trial court, confirmed by High
Court u/s.376-D is modified – Appellant is convicted u/s.376 and
sentenced for the period undergone – Fine and default sentence
imposed by the trial court, unaltered – Conviction u/s.506 is set
aside – Although, conviction and sentence u/ss.363, 366, IPC and
s .4, POCSO Act is confirmed – Protection of Children from Sexual
Offences Act – s.4 – Criminal Law (Amendment) Act, 2018.
Partly allowing the appeal, the Court
Held: 1.1 In so far as the incident based on which the charge
was framed against the accused, more particularly against the
appellant, the parents of the prosecutrix and the prosecutrix
herself were examined as PW1 to PW3 who have spoken with
regard to the same. Though reference was made to the complaint
and the statement of PW1 and at the first instance the complainant
having named Ramasre alias Siri, it was in the circumstance when
he had noticed that the prosecutrix, i.e. his daughter was not in
the house and had accordingly lodged the complaint on suspicion.
It is pursuant to the complaint when  the police took action, the
prosecutrix and the said Ramasre alias Siri were retrieved by
the police when they were travelling to Mumbai as per the very
statement recorded by the prosecutrix under Section 164 Cr.PC.
In that circumstance what would be relevant is the statement
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
and the evidence tendered by the prosecutrix as PW3 before the
trial court which described the events prior thereto and the
circumstance which forced her to be with Ramasre alias Siri at
that point. Though certain discrepancies were referred to by the
counsel for the appellant in the manner the prosecutrix had
described the incident to contend that as per her  own statement
the thatched hut was open from all sides and the act was alleged
to be committed during the day time which cannot be probable, it
is noticed that the sum and substance of the evidence tendered
by the prosecutrix as PW3 is essentially with regard to the physical
relationship she had with the appellant due to which she had
become pregnant and this was  disclosed to her family members
only when they had noticed her to be pregnant. She has further
stated that in that situation when she had insisted on the appellant
marrying her, he had refused, threatened and he had taken the
help of the co-accused and got her married to Ramasre alias Siri,
by enticing and taking her away. In that background, the fact that
the appellant had physical relationship with the prosecutrix on
more  than one occasion and the prosecutrix had not disclosed
the same to her parents when it had happened for the first time
about four months earlier but was brought to their notice when
her pregnancy was noticed will have to be viewed from the stand
point as to whether the charges as framed would stand established.
It is no doubt true that the prosecutrix in her deposition has
stated that on the day of the incident the appellant, Ramasre alias
Siri, Nangodiya etc. had caught hold of her. However, there is no
specific indication as to whether the other accused and the
appellant had indulged in sexual act  along with the appellant
herein or the reference is with regard to that they having assisted
the appellant in enticing and taking her away on the date of the
complaint so as to marry her of to Ramasre alias Siri. What  is
also to  be taken  note  of, is that the said Ramasre alias Siri and
Nangodiya are siblings being the sons of Raksharam who was
acquitted by the trial court. To establish common intention on
their part in furthering the sexual assault committed by the
appellant, there is convincing evidence to that effect. [Paras 9,
10][714-B-H; 715-A-D]
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1.2 Though there is marginal variation with regard to the
number of weeks mentioned, the pregnancy was not less than 20
weeks and if the same is kept in the backdrop, the statement of
the prosecutrix that the appellant had i

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