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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

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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)  

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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  

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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  

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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  

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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.

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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.

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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  

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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  

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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.    

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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  

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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  

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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.

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