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The incident having occurred prior to amendment, the pre­amended provision will have to be taken note: Supreme Court

Taking into consideration all facts including that no material is available on record to indicate that the appellant has any criminal antecedents and that he is also a father of five children, it appears that there is no reason to apprehend that the appellant would indulgence similar acts in future as held by the Hon’ble Supreme Court through the learned bench lead by Justice A.S. Bopanna in the case of Manoj Mishra @ Chhotkau v. The State of Uttar Pradesh [CRIMINAL APPEAL NO.1167 OF 2021] (Arising out of SLP(Criminal) No. 7828/2019) 

The brief facts leading to the conviction and sentence of the appellant is that the father of the prosecutrix filed a written report before the police alleging therein that one Ramasre had enticed his daughter aged about 14 years on 02.08.2013 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. An FIR was lodged under Sections 363 and 366 IPC. The prosecutrix was found by the police and brought back for medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366, 376 and 506 of IPC and sections 3 and 4 of 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. Accordingly, the accused were sentenced to punishment for the offences under Section 363, 366, 376­D, 506 IPC along with Section 4 of POCSO Act.

The appellant had assailed the said judgment before the High Court in Criminal Appeal No.1102/2017. The learned Judge while adverting to the evidence tendered before the trial court had reappraised the same and had arrived at the conclusion that the appellant had raped the prosecutrix number of times after being enticed away by him. The appellant therefore claiming to be aggrieved by the judgment passed by the learnedJudge of the High Court is before this Court in this appeal.

The learned counsel for the appellant while seeking to contend that the trial court and the High Court had committed an error in convicting and upholding the conviction seeked to refer to the contradictions in the very manner in which the complaint was initiated and the various statements made by the prosecutrix herself with regard to the nature of the incident as also her age. He further submits, in the facts and circumstance, the conviction under Section 376­D IPC is not justified and said provision ought not to have been invoked as it does not qualify to be a gang rape.

The learned standing counsel for the State of Uttar Pradesh contends though there may be certain discrepancies in the various statements but the same cannot qualify as contradictions and in that circumstance when PW­1, PW­2 and PW­3 have all stated with regard to the incident in support of the prosecution and when there is categorical medical examination to indicate that the prosecutrix was pregnant, the charge would stand established. In such circumstance when the father of the prosecutrix has indicated the age as 14 years and the doctor also has indicated the age to be around 16 years, the contention of the consensual sex will not be acceptable.

After hearing the learned counsel on behalf of the respective parties at length, the Hon’ble Court held “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. 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. On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and not under Section 376 D IPC, the appropriate sentence to be imposed needs consideration.”

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Judgment Reviewed by Vandana Ragwani

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