OM PRAKASH Vs STATE OF HARYANA
Bench: SUDHANSU JYOTI MUKHOPADHAYA,PRAFULLA CHANDRA PANT
Case number: Crl.A. No.-000807-000807 / 2010
Diary number: 28853 / 2009
Advocates: PREM MALHOTRA Vs
KAMAL MOHAN GUPTA
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 807 OF 2010
Om Prakash ...Appellant
Versus
State of Haryana …Respondent
WITH
CRIMINAL APPEAL NO. 1309 OF 2009
Kartar Singh ...Appellant
Versus
State of Haryana …Respondent
WITH
CRIMINAL APPEAL NO. 1310 OF 2009
Chhoti ...Appellant
Versus
State of Haryana …Respondent
Page 2
J U D G M E N T
PRAFULLA C. PANT, J.
These appeals are directed against the judgment
and order dated 30.7.2008 passed by the High Court of Punjab
and Haryana whereby conviction and sentence recorded
against accused/appellants Om Prakash and Kartar Singh
under Section 376(2)(g) IPC, and one against
accused/appellant Chhoti, under Section 109 IPC, are affirmed.
2. The prosecution case in brief is that on the day of
incident, prosecutrix aged about 15 years, was alone in her
house, in Village Jagan. Her mother had gone to Village
Hasanga on account of death of her grand mother, and other
family members were also not present in the house.
Accused/appellant Chhoti came there and asked the
prosecutrix to bring ‘lassi’ from her house. On this, prosecutrix
went to the house of accused Chhoti but as soon as she
entered the house, accused Kartar Singh (husband of Chhoti)
2
Page 3
and another accused Om Prakash, who were already sitting
there, bolted the door from inside and the prosecutrix was
raped by them. She was freed by them after about an hour.
She was threatened to be eliminated if she disclosed about the
incident to any one. Prosecutrix came back to her house and
did not disclose about the above incident for 20 days till her
mother came back to the village on 12.6.1995 from her
maternal house. The prosecutirx narrated the incident to her
mother whereafter she was taken by her father to get the report
lodged at the Police Station Agroha. On 13.6.1995, first
information report was registered, and investigation was taken
up by SI Jaipal Singh (PW8) who inspected the spot and after
interrogating the victim, took her to Ilaqa Magistrate where her
statement was got recorded under Section 164 Cr.P.C.
Thereafter the prosecutirx was taken to hospital where she
was medically examined by Dr. Sunita Bishnoi (PW9) who
observed in her report Exb. PC that secondary sexual
characters of prosecutrix were found well developed. It is
further reported that the victim disclosed to the Medical Officer
3
Page 4
the history of rape allegedly committed about 20 days back. No
marks of external injury were found on her body. There was no
mark of injury over perineum and thighs. Hymen was of healed
ruptured type and admitted one finger easily. The victim was
undergoing her periods. She was referred to Radiologist for
determination of her age. Dr. Pawan Jain (PW2), after
radiological examination, opined in his report Exb. PE that the
girl was aged between 14 to 16 years. Her upper end of radius
was found fused but lower end of radius was not yet fused.
Upper end of fibula was also not found fused.
3. After investigation, charge-sheet was submitted by the
police before the Magistrate for trial of accused Om Prakash,
Kartar Singh and Chhoti in respect of offences punishable
under Section 376, 342,506 r/w Section 34 IPC.
4. On committal of the case, after hearing the parties on
26.9.1995, the trial court framed charge for the offence
punishable under Section 376 IPC against accused Om
Prakash and Kartar Singh. As against accused Chhoti (wife of
4
Page 5
accused Kartar Singh), charge was framed for the offence
punishable under Section 109 IPC for aiding the commission of
rape. All the three accused pleaded not guilty and claimed to
be tried. On this, the prosecution got examined eleven
witnesses namely; PW1 Dr. Dale Singh, PW2 Dr. Pawan Jain,
PW3 Inderjit, PW4 H.C. Ramphal, PW5 prosecutrix, PW6
Chando (mother of prosecutrix), PW7 ASI Krishan Lal, PW8 SI
Jaipal Singh, PW9 Dr. Sunita Bishnoi, PW10 Baldev Singh and
PW11 Gopal Krishan. Oral and documentary evidence was put
to the accused, in reply to which, the accused alleged that the
evidence is incorrect and false and they were implicated due to
enmity. Accused Kartar Singh took a specific defence plea that
he was falsely implicated, after prosecutrix had undergone
abortion in a private nursing home and she suspected that it
was he (Kartar Singh) who spread the news in the village
about the abortion, and due to that reason, he was falsely
implicated. The trial court, after examining the evidence on
record and hearing the parties, found that the prosecution has
successfully proved charge of offence punishable under
5
Page 6
Section 376(2)(g) IPC against accused Om Prakash and Kartar
Singh, and offence punishable under Section 109 IPC against
accused Chhoti. After hearing on the sentence, the trial court
sentenced each one of the accused Om Prakash and Kartar
Singh to undergo rigorous imprisonment for a period of 10
years and directed them to pay fine of Rs. 10,000/- each.
Accused Chhoti was sentenced to undergo rigorous
imprisonment for a period of three years and to pay fine of Rs.
10,000/-.
5. Aggrieved by the said judgment and order dated
16.12.1996 passed by the learned Additional Sessions Judge,
Hissar, the convicts filed appeal before the High Court of
Punjab and Haryana which was dismissed vide impugned
judgment and order dated 30.7.2008, challenged before us.
6. We have gone through the record of the trial court and
also considered the submissions of the learned counsel for the
parties.
6
Page 7
7. No doubt there is a delay of some twenty days in lodging
the first information report but there is sufficient explanation on
record for the same. PW5 (victim), who was minor on the date
of incident, has stated that she could disclose the horrifying
incident only after her mother came back from her maternal
house after 20 days. PW5 (victim) narrated to her mother as to
how she was duped by accused/appellant Chhoti who sent to
her house to take ‘lassi’, and the fact that she was subjected to
rape by the two accused namely; Om Prakash and Kartar
Singh. She told that after she went in the house of Chhoti, she
was raped by accused Om Prakash and Kartar Singh who
threatened her of dire consequences before she was freed.
Explanation for delay in lodging FIR gets corroborated by the
statement of Chando PW 6 (mother of the victim). Both the
witnesses have been subjected to lengthy cross-examination
but nothing has come out to create reasonable doubt in their
testimony.
7
Page 8
8. There is sufficient evidence on record to prove that on the
date of incident the victim was aged less than 16 years. Not
only the report Exb. PE prepared by Radiologist discloses that
the age of the victim was between 14 to 16 years, the school
certificate (Exb. PS) proved by Gopal Krishan (PW11),
Headmaster of Government Middle School, Jagan proves the
fact that date of birth of the victim was 10.1.1980 which means
that in June, 1995, she was only 15 years old. As such the
consent of the victim is also not material in the present case.
9. On behalf of the appellants, though it has been pleaded
that the appellants were falsely implicated due to enmity but on
scrutiny of the evidence on record, we agree with courts below
that the evidence adduced by the victim is natural and
trustworthy and it does not appear that the victim has falsely
implicated the appellants due to enmity.
10. It is vehemently argued on behalf of the appellant Chhoti
that she being a woman, neither can be convicted under
Section 376 IPC read with Section 34 IPC nor under Section
8
Page 9
109 IPC. In this connection, our attention was drawn to the
case of Kulwant Singh @ Kulbansh Singh vs. State of Bihar
(2007) 15 SCC 670. Paragraph 12 of the said judgment reads
as under:
“Where a person aids and abets the perpetrator of a crime at the very time the crime is committed, he is a principal of the second degree and Section 109 applies. But mere failure to prevent the commission of an offence is not by itself an abetment of that offence. Considering the definition in Section 109 strictly, the instigation must have 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. Section 109 is attracted even if the abettor is not present when the offence abetted is committed provided that he had instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to the conspiracy some act or illegal omission takes place or has intentionally induced the commission of an offence by an act or illegal omission. In the absence of direct involvement, conviction for abetment is not sustainable. (See Joseph Kurian v. State of Kerala (1994) 6 SCC 535.)”
Also placing reliance to the case of Priya Patel vs. State of M.P.
and another (2006) 6 SCC 263, it is contended that accused
9
Page 10
appellant Chhoti has been wrongly convicted under Section 109
IPC read with Section 376 IPC.
11. Mr. Rishi Malhotra, learned counsel for the appellants
relying on the cases of Kulwant Singh (supra) and Priya Patel
(supra) submitted that merely for the reason that someone has
not protected the victim, one cannot be convicted for the
offence of abetment.
12. However, accused Chhoti is neither convicted under
Section 376 IPC, nor found guilty (of abetment) by reading the
offence punishable with the aid of Section 34 IPC. Rather she
is convicted and sentenced only under Section 109 IPC for
abetment as she aided the commission of rape by other two
accused.
13. Section 109 IPC provides that whoever abets any
offence, shall, if the act abetted is committed in consequence of
the abetment, and no express provision is made for the
punishment of such abetment, be punished with the
punishment provided for the main offence.
10
Page 11
14. Section 107 IPC defines “abetment of a thing” as under:
“107. Abetment of a thing.—A person abets the doing of a thing, who—
First — Instigates any person to do that thing; or
Secondly-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly — Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.”
15. In the light of above provisions of law, we have carefully
gone through the record and considered the cases referred as
above. We find that in the present case, there is positive
evidence adduced by the prosecution that accused Chhoti has
aided the commission of offence by asking the victim to go to
her house to take ‘lassi’ where accused Om Prakash and Kartar
11
Page 12
Singh bolted the room and subjected the victim to rape. From
the record, it appears that for about an hour, the victim was not
allowed to go out from the house where she was subjected to
rape. It was the house of accused Chhoti and her husband
where the incident is said to have taken place. As such, both
the courts below have rightly concluded that it cannot be said
that accused Chhoti has not abetted the crime in the manner
suggested by prosecution. We concur with the view taken by
the courts below. Intentional aiding of the offence is covered by
the third clause mentioned in Section 107 IPC.
16. Lastly, it is submitted by the learned counsel for the
appellants that the sentence awarded against accused Chhoti
be reduced to the period already undergone by her. However,
considering the facts and circumstances of the case and after
going through the record, we find that the sentence awarded by
the trial court as upheld by the High Court, is just and proper.
17. Therefore, we find no force in these appeals which are
liable to be dismissed. Accordingly, all the three appeals are
12
Page 13
dismissed. Accused Chhoti, Kartar Singh and Om Prakash
were granted bail by this Court vide orders dated 18.5.2009,
20.7.2009 and 16.4.2010 respectively. Consequent upon the
dismissal of their appeals, accused/appellants Om Prakash,
Kartar Singh and Chhoti shall be taken into custody forthwith to
serve out the remaining of their sentence.
……….………..………………………….J. (SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………J. (PRAFULLA C. PANT)
NEW DELHI; OCTOBER 14 , 2014.
13