Challenge against the judgment of High Court of H.P for the offences section 376(f)(g) of IPC
1. The respondents in Criminal Appeal No.2567 of 2024 have been convicted by the High Court of Himachal Pradesh at Shimla by the impugned judgment and order dated 2nd March 2017 for the offence punishable under clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, 1860 (for short, ‘the IPC’). They were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000/- each. They were sentenced to undergo rigorous imprisonment for six months on default of payment of fine. The fine amount, if deposited, was ordered to be paid to the prosecutrix.
Trial court acquitted the accused for sexual intercourse for consent but Hon’ble High Court remanded back to try the case again for gang rape, Trial court again acquitted all the accused, now Hon’ble High court has converted acquittal into conviction
2. PW-5 is the prosecutrix. The alleged incident is of 8th July 1989. Initially, the accused were prosecuted for the offences punishable under Section 376, read with Section 34 of the IPC. Six accused were tried before the Sessions Court, namely, Raghubir Singh (Raghubir), Vijay Kumar (Vijay), Ravi Prakash (Ravi), Anil Kumar alias Bittu (Anil), Hari Ram (Hari) and Sunil Kumar (Sunil). The Trial Court acquitted the accused on the ground that in the absence of any corroborating evidence of any struggle on the part of the prosecutrix or any corroborating injury on the person of the accused, the defence of the accused that the sexual intercourse was with the consent, cannot be ruled out. The appellant–the State of Himachal Pradesh, appealed against the order of acquittal. By the order dated 28th March 2008, the High Court set aside the judgment of the Sessions Court and remanded the case to the Sessions Court with a direction to try the accused for the offence of gang rape. After the order of remand, the case was tried only against five accused as the accused Anil had died. The prosecution adopted the evidence recorded before remand, and even the accused adopted their cross-examination. By the judgment and order dated 24th September 2008, the Sessions Court again passed an order of acquittal. By the impugned judgment and order, the High Court interfered in an appeal preferred by the State. It converted the acquittal of the accused into a conviction for the offence punishable under Section 376(2)(g) of the IPC. Regarding the sentence, the High Court held that there were adequate and special reasons for imposing a sentence of imprisonment for a term of less than ten years. The said power was exercised by the High Court in terms of the proviso to sub-section (2) of Section 376 of the IPC as it existed on the statute book before Section 376 was substituted by Act No.13 of 2013.
Consideration of submissions
Three out of five accused have stated in their section 313 Cr.P.C statement as if they had sexual intercourse with the consent of the prosecutrix and they used to pay her consideration
6. A perusal of the impugned judgment shows that on consideration of the evidence, there is a finding recorded by the High Court that the guilt of the accused has been established. According to the High Court, this was the only possible finding which could have been recorded based on the evidence on record. Before we consider the evidence, we may note that in paragraph 12 of the judgment of the Sessions Court, after remand, it is recorded that in the statement of accused Vijay under Section 313 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.PC.’), he stated that he had intimacy with the prosecutrix for one year. She had been charging money for that. Accused Sunil in his statement under Section 313 of the Cr. PC. stated that the prosecutrix used to accompany him even before the alleged occurrence and used to charge money. He stated that on the day of the incident, the prosecutrix demanded Rs.100/-, but he could pay only Rs.50/-. The Sessions Court further recorded that accused Ravi, in his statement under Section 313 of the Cr.PC., also stated that sexual intercourse with the prosecutrix was with her consent and as he did not pay any money to her, she made a false allegation. The plea of accused Raghubir and Hari was that they were falsely implicated. Accused-Raghubir, in his statement under Section 313 of the Cr. PC stated that since he had accompanied one Chunni Pradhan (discharged accused), false allegations have been made against him. Accused Hari in his statement under Section 313 of the Cr. PC. stated that as he was an employee of Chunni Pradhan, he was also dragged into the case. Thus, three out of five accused have come out with a case that they had sexual intercourse with the consent of the prosecutrix. They went to the extent of alleging that they used to pay her consideration. Sub-section (4) of Section 313 of the Cr.PC provides that the answers given by the accused in his examination under sub-section (1) of Section 313 of the Cr.PC may be taken into consideration in the trial. This Court had an occasion to consider the scope of sub-section (4) of Section 313 of the Cr.PC in the case of Manu Sao v. State of Bihar [(2010) 12 SCC 310] Paragraphs 14 to 17 of the said decision read thus:
“14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
15. Another important caution that courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under Section 313 of the Code as it cannot be regarded as a substantive piece of evidence. In Vijendrajit Ayodhya Prasad Goel v. State of Bombay [(1953) 1 SCC 434 : AIR 1953 SC 247 : 1953 Cri LJ 1097] , the Court held as under : (AIR p. 248, para 3)
“3. … As the appellant admitted that he was in charge of the godown, further evidence was not led on the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under Section 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused’s statement and excluded the exculpatory part does not seem to be correct. The statement under Section 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.”
16. On similar lines reference can be made to a quite recent judgment of this Court in Ajay Singh v. State of Maharashtra [(2007) 12 SCC 341 : (2008) 1 SCC (Cri) 371] where the Court held as under : (SCC p. 347, paras 11-13)
“11. So far as the prosecution case that kerosene was found on the accused’s dress is concerned, it is to be noted that no question in this regard was put to the accused while he was examined under Section 313 of the Code.
12. The purpose of Section 313 of the Code is set out in its opening words—‘for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him’. In Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060 : AIR 1953 SC 468 : 1953 Cri LJ 1933] it has been laid down by Bose, J. (AIR p. 469, para 8) that the statements of the accused persons recorded under Section 313 of the Code ‘are among the most important matters to be considered at the trial’. It was pointed out that : (AIR p. 470, para 8)
‘8. … The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box [and that they] have to be received in evidence and treated as evidence and be duly considered at the trial.’ ” This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.
13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.”
17. The statement made by the accused is capable of being used in the trial though to a limited extent. But the law also places an Criminal Appeal no.2567 of 2024 etc. Page 8 of 15 obligation upon the court to take into consideration the stand of the accused in his statement and consider the same objectively and in its entirety. This principle of law has been stated by this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat. [1951 SCC 1060: AIR 1953 SC 468 : 1953 Cri LJ 1933]”.
The court must consider the physical relationship of accused with the prosecutrix by paying her money under section 313 Cr.P.C
Therefore, the conviction cannot be based solely on the statements made by an accused under sub-section (1) of Section 313 of the Cr. PC. The statements of the accused cannot be considered in isolation but in conjunction with the evidence adduced by the prosecution. The statements may have more relevance when under a statute, an accused has burden of discharge. When the law requires an accused to discharge the burden, the accused can always do so by a preponderance of probability. But, while considering whether the accused has discharged the burden, the court can certainly consider his statement recorded under Section 313. In this case, the accused has no burden to discharge. In the present case, while appreciating the evidence adduced by the prosecution, the statements of the three accused that they maintained a physical relationship with the prosecutrix by paying her money will have to be considered. Dr. Shashi Thakur (PW-4), who had examined the victim, noted inflammation in the private parts of the victim. In the cross-examination, PW-4 opined that it is not necessary that in a case of forcible sexual intercourse, an injury should be there on the body of the victim. Absence of injuries on the person of the prosecutrix is by itself no ground to infer consent on the part of the prosecutrix.
No suggestion was put to the prosecutrix that the sexual intercourse was consent further the stand in the statement recorded u/s 313 crpc as if accused gave money was not put to the prosecutrix
10. We have carefully perused the cross-examination of the prosecutrix. In the cross-examination, the case put to her was that she had voluntarily accompanied the accused Vijay. There was no suggestion given by the accused that the sexual intercourse with the prosecutrix was with her consent. The evidence of the prosecutrix in her examination-in-chief that the accused committed sexual intercourse with her has not been shaken. The case of accused Vijay made out in his statement under Section 313 of Cr.PC was that he was in a relationship with the victim for one year and was paying money to the victim for maintaining a sexual relationship. This case has not been put to the prosecutrix. Even the case made out by accused Sunil and Ravi that they were keeping a physical relationship with the prosecutrix by paying money has not been put to the prosecutrix.
High court was right in convicting the accused
12. In this view of the matter, the High Court’s conclusion was the only possible conclusion based on the evidence on record. Therefore, we find no merit in the appeal preferred by the accused Vijay.
Party
State of Himachal Pradesh … Appellant versus Raghubir Singh & Ors. … Respondents with Criminal Appeal no.2567 of 2024 CRIMINAL APPEAL NO. 2568 OF 2024 – 2024 INSC 421 – May 15, 2024.