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Supreme Court lets off man convicted for gang-rape of minor over lack of convincing evidence

The Court was hearing an appeal filed by a man against his conviction under Sections 363, 366, 376-D (Gang-Rape) & 506 IPC and Section 4 of POCSO Act.

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The Supreme Court on Friday directed the release of a man convicted for the gang-rape of a minor and sentenced to 20 years of rigorous imprisonment while converting his conviction to rape and sentenced to the period already undergone by him. The Court has noted that the charge of gang-rape has not been established with convincing evidence. 

The Court was hearing an appeal filed by a man against his conviction under Sections 363, 366, 376-D (Gang-Rape) & 506 IPC and Section 4 of POCSO Act. The Apex Court has modified the sentence under Section 376-D IPC to Section 376 IPC and further set aside the conviction under 506IPC while noting that there is no evidence in regard to this except the vague statement of the prosecutrix. 

The judgment was pronounced by the Bench of Justice M. R. Shah and Justice A.S. Bopanna which has noted that 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. 

Statement of prosecutrix & medical evidence establishes rape not gang-rape: Supreme Court 

Further, the Court said, “It is no doubt true that the prosecutrix in her deposition has stated that on the day of the incident the appellant (Manoj Mishra @ Chhotkau), 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.”

“Though there are minor discrepancies with regard to the statement made under Section 164 Cr.PC and the evidence tendered by the prosecutrix as PW­3, the thrust of the allegation has been that the appellant had committed physical contact with her against her will. In such circumstance, the evidence of the prosecutrix and the medical evidence would establish the charge of rape,” said the Court. 

In this backdrop, the court has considered whether the charge framed against the accused under Section 376 D IPC would be justified and as to whether the case would qualify to be one of gang-rape. After evaluation of evidence on record, the Court has noted that insofar as the incident of rape attributed to the appellant, it does not disclose that all the accused had committed rape on her or had the common intention and aided the commission. Further, the Court has said it was not established that all of them were seen together or aided with common intention.

Co-accused acquitted by the Court below

“That apart, as noted the other three accused apart from the appellant are the siblings and their father Raksharam has been acquitted by the trial court. In that circumstance, the charge of gang-rape has not been established with convincing evidence,” held the Apex Court. 

“However, having already noted that the incident of rape alleged had been established, it would be a case to convict the appellant under Section 376 of IPC. However, the conviction handed down by the trial court and confirmed by the High Court under Section 363, 366 and under Section 4 of POCSO Act and the sentence as ordered thereunder would not call for interference,” it added. 

Background of the Case

The brief facts of the case is that the father of the prosecutrix had filed a written report before the police alleging that one Ramasre alias Siri had enticed his daughter of age 14 years and had taken her away. In the said complaint, it was further alleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkau i.e. the appellant herein had cooperated with him in the alleged incident.   

Therafter, an FIR was lodged under Sections 363 and 366 IPC. Police searched and found the prosecutrix along with Ramasre alias Siri and brought back and subjected to medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366, 376 and 506 Indian Penal Code (for short ‘IPC’) along with sections 3 and 4 of Protection of Children from Sexual Offences Act (for short ‘POCSO Act’). 

The trial court having analysed the said evidence which was tendered before it arrived at the conclusion that the charge alleged against the accused was proved and sentenced them except Raksharam with 3 years of rigorous imprisonment with fine of Rs 3000­ for the offence under Section 363 IPC; 5 years of rigorous imprisonment with fine of Rs 5,000 for the offence under Section 366 IPC; 20 years rigorous imprisonment with fine of Rs 25,000 for the offence under Section 376­D IPC; 2 years of rigorous  imprisonment with fine of Rs 2,000 under Section 506 IPC and 7 years rigorous imprisonment with fine of Rs 7,000 for the offence under Section 4 of POCSO Act. 

The sentence for the offences under the aforesaid provisions was ordered to run concurrently and the Raksharam was acquitted on holding that the charges against him were not proved. 

Being aggrieved by the Judgement and order passed by the Trail Court, Appellants had approached the Allahabad High Court in Appeal wherein court observing that the triad has rightly come to the conclusion affirmed the judgement of the Trail Court in that light of the fact that the appellant had raped the prosecutrix number of times after being enticed away by him. The appellant had moved the Apex Court against the order of the High Court. 

35982-2018-43-1501-30702-Judgement-08-Oct-2021

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