“One of the categories which attracts more stringent punishment is the rape on a woman who is pregnant”

Case name:Om Prakash V/S State of U.P
Case number:Criminal appeal number- 629 of 2006
Court:Supreme Court of India
Bench:Justice Arijit Pasayat, Justice S.H Kapadia
Decided on:MAY 11, 2006
Relevant Act/Sections:Section 376 of the Indian Penal Code, 1860, Section 313 of code of criminal procedure, 1973
  • Om Prakash @ Chhotey who was related to the parents of the informant, met then in the Court premises. Jaipal (PW-2) brother of Ram Saran was also there along with the informant and she was talking to him about bail of her husband. 
  • After sometime, accused Om Prakash sent PW-2 to find out whether the challan had come or not. Then at about 3.00 p.m. accused overpowered the informant and he started raping her in the veranda of Zila Parishad near the Court. When the informant raised alarm, PW-2 and one Ram Lal came there and they assaulted Om Prakash who was raping her and they apprehended him and the accused was taken to the police station.
  • The informant gave oral information and then Chik number 126 Exhibit A-1 was recorded and the entry was made in the general diary and the case was registered. Internal examination of the body of the informant was done by Dr. Purnima Srivastava (PW-3) and the medical report is Exhibit A-2 and the supplementary report is Exhibit A-3. The medical examination of the accused was done by Dr. P.K. Gangwar (PW-4) and the report is Exhibit A-4.
  • Whether evidence establishes knowledge of the accused?
  • Whether the judgement given by trial and High court was applicable?
  • The court heard the learned counsels and referred to the judgement of trial and high court that the statement of accused Om Prakash was recorded under Section 313 of the Criminal Procedure Code, 1973. The accused alleged that he was implicated due to the enmity. It was stated by him that he had come from the village along with the brother of the victim and other persons for taking steps. He even made some attempts in the police station in the night. He had taken some money for the purpose. When the challan came, they got down at Bilgram Chungi and then a quarrel took place amongst the accused, PW-2 and father of the victim on the question of refund of the money.  They assaulted him and he was implicated in the criminal case.
  • The court held that the applicability of Section 376(2)(e) is concerned, it is submitted that the doctor has clearly stated that the victim was six months pregnant, and it could be known from the external appearance. The Trial Court had rightly observed that the accused must have known the victim was pregnant and there is full possibility in that regard.  Though the High Court has not dealt with this aspect, it has clearly noted that the accused was in a position to dominate the will of the victim.
  •  It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family.
  • Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting her own prestige and honour.
  • The court observed that crime against women in general and rape in particular is on the increase. It is an irony that while celebrating women’s rights in all spheres, show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. The court noticed that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.
  • The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepencies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.
  • The court observed that stringent punishment is the rape on a woman who is pregnant.  In such cases where commission of rape is established for operation of Section 376(2)(e) the prosecution has to further establish that accused knew the victim to be pregnant. In the instant case there was no such evidence led. The Trial Court came to the conclusion that there was “full possibility” of the accused knowing it. 
  • There is a gulf of difference between possibility and certainty. While considering the case covered by Section 376(2)(e) what is needed to be seen is whether evidence establishes knowledge of the accused. Mere possibility of knowledge is not sufficient.  When a case relates to one where because of the serious nature of the offence, as statutorily prescribed, more stringent sentence is provided, it must be established and not a possibility is to be inferred.  The language of Section 376(2)(e) is clear. 
  • It requires prosecution to establish that the accused knew her to be pregnant.  This is clear from the use of the expression “knowing her to be pregnant”.  This is conceptually different that there is a possibility of his knowledge or that probably he knew it. 
  • The court held that positive evidence has to be adduced by the prosecution about the knowledge. In the absence of any material brought on record to show that the accused knew the victim to be pregnant Section 376(2)(e) IPC cannot be pressed into service.  To that extent the judgment of the Courts below are unsustainable. 
  • The court said minimum sentence prescribed under Section 376(1) IPC is clearly applicable.
  • With the modification of sentence by reduction from 10 years to 7 years, the appeal is dismissed.         

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