Arjun Singh vs State Of H.P

Arjun Singh ......Appellant

Versus

State of H.P. ...... Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge

of the Himachal Pradesh High Court upholding the conviction of the

appellant for offences punishable under Sections 376, 511, 363 and 366 as

well as Section 109 of the Indian Penal Code, 1860 (in short the `IPC'). He was sentenced to undergo rigorous imprisonment for 7 years, 3 years, 4

years, 5 years and 7 years for the aforesaid offences alongwith fine with

default stipulation.

3. Prosecution version as unfolded during trial is as follows:

On 18.7.1999, the victim (PW10) boarded the bus to Shimla from

Solan. When the bus bearing registration No. HP-12-4113 reached near

petrol pump (HIMFED) situated near Nav Bahar towards Chotta Shimla, all

the passengers got down, except the prosecutrix and accused-appellant

Arjun Singh. Accused Arjun Singh committed forcible sexual intercourse

with the prosecutrix against her will and without her consent. The victim

was kidnapped by the accused who was minor at the time of kidnapping in

bus No.HP-12-4113 from Solan. The accused had induced the prosecutrix

that he would marry her after reaching Nalagarh. The FIR was registered.

Thereafter the investigation was carried out and the challan was put in the

Court. The appellant was charged for offences punishable under Sections

376, 511, 366 and 109 of the Indian Penal Code. The prosecution examined

15 witnesses to prove its case. The appellant had examined Shri Arvind

Sharma (DW 1) as defence witness. The learned Additional Sessions Judge,

2 Solan, convicted and sentenced the accused as stated above. The sentences

were directed to run concurrently. It is to be noted that two persons faced

trial for the aforesaid offences i.e. appellant who was the conductor of the

vehicle, and one Daler Singh who was the driver of the vehicle. Since

accused persons abjured guilt, trial was held. The trial court placed reliance

on the evidence of the prosecutrix (PW1) and her mother (PW 3). As a plea

relating to the age of the prosecutrix to show that she was a consenting party

was taken, the person who had issued the date of birth certificate was

examined as PW 4. According to the said certificate the date of birth was

19th October, 1984. She was admitted to the school on 1st April, 1997 and

had left it on 24th October, 1998. The trial Court held that the age of the

victim was less than 16 years and placed reliance on the documents

produced. It was also submitted by the accused persons that no rape has

been committed. This plea also was rejected by the trial court.

Accordingly the trial court while holding the appellant guilty,

acquitted co-accused. As noted above, appeal before the High Court was

dismissed.

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4. In support of the appeal the stand taken before the trial court and the

High Court were reiterated.

5. Learned counsel for the respondent-State supported the judgment of

the High Court.

6. So far as the age aspect is concerned in Vishnu v. State of

Maharashtra [2006(1) SCC 283] it was inter alia held as follows:

"20. It is urged before us by Mr Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and, therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the Medical Officer is to assist the court as he is not a witness of fact and the evidence given by the Medical Officer is really of an advisory character and not binding on the witness of fact."

7. In State of Chhattisgarh v. Lekhram [2006(5) SCC 736] it was held

that the register maintained in a school is admissible evidence to prove the

date of birth of the person concerned in terms of Section 35 of the Indian

Evidence Act, 1872 (in short `Evidence Act'). It may be true that in the

entry of the school register is not conclusive but it has evidentiary value. 4

8. Learned counsel for the appellant has submitted that the evidence of

the Doctor clearly rules out the commission of rape. The Medical officer

(PW 9) has stated that rape had not been committed and sexual intercourse

had not taken place.

9. The offence of rape occurs in Chapter XVI of IPC. It is an offence

affecting the human body. In that Chapter, there is a separate heading for

`Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B,

376-C, and 376-D. `Rape' is defined in Section 375. Sections 375 and 376

have been substantially changed by Criminal Law (Amendment) Act, 1983,

and several new sections were introduced by the new Act, i.e. 376-A, 376-

B, 376-C and 376-D. The fact that sweeping changes were introduced

reflects the legislative intent to curb with iron hand, the offence of rape

which affects the dignity of a woman. The offence of rape in its simplest

term is `the ravishment of a woman, without her consent, by force, fear or

fraud', or as `the carnal knowledge of a woman by force against her will'.

`Rape' or `Raptus' is when a man hath carnal knowledge of a woman by

force and against her will (Co. Litt. 123-b); or as expressed more fully,' rape

is the carnal knowledge of any woman, above the age of particular years,

5 against her will; or of a woman child, under that age, with or against her

will' (Hale PC 628). The essential words in an indictment for rape are rapuit

and carnaliter cognovit; but carnaliter cognovit, nor any other

circumlocution without the word rapuit, are not sufficient in a legal sense to

express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of

rape, `carnal knowledge' means the penetration to any the slightest degree

of the organ alleged to have been carnally known by the male organ of

generation (Stephen's "Criminal Law" 9th Ed. p.262). In `Encyclopoedia of

Crime and Justice' (Volume 4, page 1356) it is stated "......even slight

penetration is sufficient and emission is unnecessary". In Halsbury's

Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that

even the slightest degree of penetration is sufficient to prove sexual

intercourse. It is violation with violence of the private person of a woman-

an-outrage by all means. By the very nature of the offence it is an obnoxious

act of the highest order.

10. In the instant case though the rape does not appear to have been

committed but the attempt to commit the rape is clearly established. That

being so the conviction for offence punishable under Section 376 IPC is not

made out but the offence punishable under Section 511 IPC is clearly made

6 out. So far as the offence under Sections 365 and 366 IPC are concerned

the trial court and the high Court have analysed the evidence in great detail.

We find no infirmity in the conclusion to warrant interference.

11. Under Section 109 the abettor is liable to the same punishment which

may be inflicted on the principal offender; (1) if the act of the latter is

committed in consequence of the abetment and (2) no express provision is

made in the IPC for punishment for such an abetment. This section lays

down nothing more than that if the IPC has not separately provided for the

punishment of abetment as such then it is punishable with the punishment

provided for the original offence. Law does not require instigation to be in

a particular form or that it should only be in words. The instigation may be

by conduct. Whether there was instigation or not is a question to be decided

on the facts of each case. It is not necessary in law for the prosecution to

prove that the actual operative cause in the mind of the person abetting was

instigation and nothing else, so long as there was instigation and the offence

has been committed or the offence would have been committed if the person

committing the act had the same knowledge and intention as the abettor.

The instigation must be with 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.

7 It is only if this condition is fulfilled that a person can be guilty of abetment

by instigation. Further the act abetted should be committed in consequence

of the abetment or in pursuance of the conspiracy as provided in the

Explanation to Section 109. Under the Explanation an act or offence is said

to be committed in pursuance of abetment if it is done in consequence of (1)

instigation (b) conspiracy or (c) with the aid constituting abetment.

Instigation may be in any form and the extent of the influence which the

instigation produced in the mind of the accused would vary and depend

upon facts of each case. The offence of conspiracy created under Section

120A is bare agreement to commit an offence. It has been made punishable

under Section 120B. The offence of abetment created under the second

clause of Section 107 requires that there must be something more than mere

conspiracy. There must be some act or illegal omission in pursuance of that

conspiracy. That would be evident by Section 107 (secondly), "engages in

any conspiracy....for the doing of that thing, if an act or omission took place

in pursuance of that conspiracy". The punishment for these two categories

of crimes is also quite different. Section 109 IPC is concerned only with the

punishment of abetment for which no express provision has been made in

the IPC. The charge under Section 109 should, therefore, be along with

charge for murder which is the offence committed in consequence of

8 abetment. An offence of criminal conspiracy is, on the other hand, an

independent offence. It is made punishable under Section 120B for which a

charge under Section 109 is unnecessary and inappropriate. {See Kehar

Singh and Ors. v. The State (Delhi Admn.) AIR 1988 SC 1883]. Intentional

aiding and active complicity is the gist of offence of abetment.

12. In the background of the facts Section 109 IPC has no application.

13. Above being the position, we uphold the conviction of the appellant

for the offences punishable under Sections 365, 366 and 511 IPC with the

corresponding sentence as imposed by the trial court and sustained by the

High Court. The convictions in terms of Sections 109 and 376 IPC are set

aside. The sentences would run concurrently.

14. The appeal is allowed to the aforesaid extent.

...........................................J. (Dr. ARIJIT PASAYAT)

.............................................J. (ASOK KUMAR GANGULY) New Delhi, February 06, 2009

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