Supreme Court of India
MOHAN CHANDversusSTATE OF UTTARAKHAND
- Citation
- 2009 INSC 59
- Decided
- 23 January 2009
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The conviction under Section 376 IPC is upheld as the victim's identification and testimony are sufficient, and the non‑mention of the accused's name in the FIR does not invalidate the proceedings.
Summary
The appellant, a truck driver, was convicted under Section 376 of the Indian Penal Code for raping the prosecutrix, who was also assaulted by other accused persons. The appellant challenged the conviction on the ground that his name was not mentioned in the FIR, alleging false implication, and contended that the evidence was insufficient to establish his guilt. The Supreme Court observed that the prosecutrix did not know the appellant's name, necessitating a test identification parade, through which she positively identified him. The Court held that the victim's testimony was clear, cogent, and corroborated by the identification parade, and that the omission of the name in the FIR was immaterial when the accused was not personally known to the victim. Consequently, the conviction and sentence of seven years' rigorous imprisonment were upheld and the appeal dismissed.
Issues considered
- The omission of the accused's name in the FIR amounts to false implication and warrants setting aside the conviction.
- Whether the evidence, including the victim's identification in a test parade, is sufficient to sustain a conviction under IPC Section 376.
Legislation cited
Subjects
rapefalse implicationFIRidentification paradeconvictionIPC Section 376criminal appealevidence
Judgment
[2009) 1 S.C.R. 498
A MOHAN CHAND
v.
STATE OF unARAKHAND
(Criminal Appeal No. 140 of 2009)
JANUARY 23, 2009.
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
Penal Code, 1860 - s.376 - Rape - Appeal against
c conviction - Plea raised that the name of the accused was
not stated in the FIR and, therefore, there was false implication
and that the evidence was insufficient to establish accusations
against him - Held: Accused was not personally known to the
victim and therefore question of mentioning the name of the
D accused in the FIR did not arise - Also, after arrest of the .
accused, he was put in Tl Parade and the victim correctly
identified him - Evidence of the victim was clear and cogent
- Conviction maintained.
The prosecution case was that PW4 was raped by the
E
accused-appellant and other accused persons. Appellant
was a truck driver. PWS, one of the accused, later on
turned approver. The trial court found the evidence to be
sufficient and convicted the appellant u/s.376 IPC with
rigorous imprisonment for 7 years. The conviction was
F upheld by the High Court.
Before this Court, the conviction of appellant was
challenged on the ground that his name was not stated
In the FIR and therefore there was false Implication and
G that the evidence was Insufficient to establish the
accusations against him.
Dismissing the appeal, the court
HELD:1. PW4 did not know the name of the appellant
H 498
MOHAN CHAND v. STATE OF UTTARAKHAND 499
and, therefore, there was necessity for Test Identification A
Parade. The evidence of PW4 is clear and cogent. In the
instant case the appellant is not personally known to
PW4 and therefore stating his name in the FIR did not
arise. However, she has categorically stated that the rape
was committed on her by the truck driver. After the arrest B
of the appellant he was put in Tl Parade and PW4 had
correctly identified him. That being so, the judgments of
the trial Court and the High Court do not suffer from any
infirmity to warrant interference. [Para 6) (503-A-C]
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal C
No. 140 of 2009.
From the Judgment and Order dated 22.2.2008 of the High
Court of Uttarakhand at Na in ital in Crl. Appeal No. 852 of 2001.
D
Jitendra Kumar for the Appellant.
Jatinder Kumar Bhatia for the Respondent.
The Judgment of the Court was delivered by
E
DR. ARIJIT PASAYAT, J.1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of Uttarakhand at Nainital High Court finding the
appellant guilty of offence punishable under Section 376 of the
Indian Penal Code, 1860 (in short the 'IPC') and sentencing him F
to undergo rigorous imprisonment for seven years. Two
persons i.e. Khemanand and the present appellant filed the
appeal before the High Court which was dismissed by· the
impugned judgment.
G
3. Background facts in a nutshell are as follows:
~
On 6.2.1985 the prosecutrix was sent by her mother to
purchase rice from cheap grain shop. The prosecutrix waited
there for sometimes in front of the shop. Ultimately, the
H
500 SUPREME COURT REPORTS [2009] 1 S.C.R.
A prosecutrix returned to her home without purchasing rice. When
her mother saw her without rice and coming late at home, she
scolded and admonished her. The prosecutrix was again sent
to the cheap grain shop and she again found it closed. When
the prosecutrix was in a sad and remorseful mood, the accused
B Basant Ballabh (who died during the pendency of appeal) who
was known to the prosecutrix came over there and inquired from
her the reason for her remorse. The accused Basant Ballabh
started to console her by saying that her mother was
admonishing her everyday and suggested that they should run
C away and marry at Purnagiri temple. The accused, Basant
Ballabh also told her that his maternal uncle has a factory where
he would get an employment and earn money and live
comfortably. The accused Basant Ballabh took the prosecutrix
to his room where they stayed throughout the night. The
accused Basant Ballabh promised her to marry on the next day
0
in Purnagiri Temple. During the intervening night of 6th/7th
February, 1985, accused Basant Ballabh committed rape on
the prosecutrix thrice in the night. On the next day, the
prosecutrix along with accused Basant Ballabh proceeded to
the bus station Champawat The accused Basant Ballabh
E asked the prosecutrix to go on foot 1 k.m. ahead from
Champawat towards Tanakpur side and wait for him near the
Deodar tree from where he would pick her up in the bus.
Following the said instructions, the prosecutrix proceeded
towards the Deodar tree on foot which is ahead of Champawat,
F from where she was taken in the bus by the accused Basant
Ballahh and Trilok Singh (who turned Approver) who had also
joined hands with accused Basant Ballabh. They all proceeded
towards Tanakpur and got down little before Tanakpur from
where they proceeded on foot and reached on Tanakpur-Bareilly
G road. They again boarded a bus going towards the side of
Bareilly. The prosecutrix became anxious and inquired as to
where they were going. In reply, the accused told her that they
would first purchase the articles required to perform marriage
from Pilibhit and then would go to the temple. When they
H reached at Pilibhit, the prosecutrix was taken to a liquor shop
MOHAN CHAND v. STATE OF UTIARAKHAND 501
[DR. ARIJIT PASAYAT, J.]
where the accused Khemanand used to work as a Salesman. A
The accused Khemanand was also having an accommodation
there. The accused Basant Ballabh, Trilok Singh and
Khemanand took the prosecutrix inside the room of accused
Khemanand where the accused persons consumed liquor. After
finishing the drinks, Trilok Singh and Basant Ballabh slept on B
one cot, while Khemanand and the prosecutrix took separate
cots. After sometimes, accused Khemanand went upto the cot
of the prosecutrix and tried to molest her. The prosecutrix
resisted his attempts and complained against accused
Khemanand to Basant Ballabh. Accused Basant Ballabh c
instead of helping her, asked her to fulfill the desire of the
accused Khemanand. Accused Khemanand subjected the
prosecutrix to sexual intercourse forcibly. On 9.2.1985 the
prosecutrix was taken to village Tikri where distantly related
sister of Trilok Singh was residing so that they may not be D
_+
apprehended by the police. Accused Triok Singh and Basant
Ballabh went outside the village to ascertain whether any report
. against them has been made or not. They came to know that
..a r~port has been lodged in the police station. The accused
broughUhe prosecutrix from village Tikri to Tanakpur. At Pilibhit,
E
ifocused Basant Ballabh got down and asked Trilok Singh to
send the prosecutrix to Champawat. Trilok Singh brought the
prosecutrix to Tanakpur. Thereafter, accused Trilok Singh found
,, truck No.USZ-4480 with its driver accused Mohan Chand near
a pump at Tanakpur. Accused Trilok Singh told accused Mohan
Chand that the prosecutrix was a student of class IX and her F
school is to open the next day, therefore, she may be taken in
the truck. Accused Trilok Singh also paid fare and instructed
accused Mohan Chand that the prosecutrix be made to get
down 1 k.m. before Champawat. Thereafter accused Mohan
Chand also committed rape upon her. When the truck moved G
..,
j
a little forward, it stopped and an unknown person who was
sitting by the side of the driver also went to the prosecutrix and
committed rape upon the prosecutrix. Accused Mohan Chand
made the prosecutrix to get down 1 k.m. before Champawat.
She covered the distance on foot and went straight to the house H
502 SUPREME COURT REPORTS [2009] 1 S.C.R.
A of accused Basant Ballabh. A written report Ex.Ka.? was -11
lodged by Girish Chandra Paneru on 07.02.1985 before the
Patti Patwari Talia Charao alleging therein that his niece, i.e.
the prosecutrix is not traceable since 06.02.1985 and that he
has gathered the information that the accused Basant Ballabh
B has taken her away from Champawat towards Tanakpur. On the
basis of FIR, the Chick FIR Ex.Ka.8 was prepared. Patti Patwari
Devi Datt (PW?) investigated the case. He recorded the
statement of the prosecutrix under Section 161 of the Code of
Criminal Procedure, 1973 (in short the 'Code') on 10.02.1985.
c During the course of investigation, the prosecutrix gave a written
report Ex.Ka.3 and disclosed that she has been raped by the
accused persons. The Investigating Officer sent the prosecutrix
for medical examination in order to ascertain her age and
whether she was subjected to sexual intercourse or not. The
D investigating officer after completing the necessary formalities
of the investigation submitted the charge sheet Ex.Ka.13 before
the Court.
After completion of investigation charge sheet was filed
and since the accused -persons pleaded innocence trial was
E held. Prem Lata Tiwari (PW-2) was the principal of the school
where the prosecutrix was studying. PW-4 was the prosecutrix.
Trilok Singh (PW-5) was the accused but later on was made
an approver. The trial Court found the evidence to be sufficient
and convicted the accused persons.
F
In appeal, 1 the basic stand taken was that at the first
instance the name of the appellant was not stated and,
therefore, there was false implication and the conviction should
not have been recorded as the evidence is not sufficient to
G establish the accusations. The High Court did not find any
substance in the plea and dismissed the appeal.
4. The stand taken before the High Court was reiterated
by the appellant.
H 5. Learned counsel for the State on the other hand
MOHAN CHAND v. STATE OF UTIARAKHAND 503
[DR. ARIJIT PASAYAT, J.]
..... supported the judgment of the trial Court and the High Court. A
6. It is to be noted that the prosecutrix did not know the
name of the accused and, therefore, there was necessity for
Test Identification Parade. The evidence of the prosecutrix is
clear and cogent. In the instant case the accused is not
'
personally known to the victim and therefore stating his name 8
in the FIR did not arise. However, she has categorically stated
~. that the rape was committed on her by the truck driver. After
the arrest of the accused he was put in Tl Parade and the victim
had correctly identified him. That being so, the judgments of the
trial Court and the High Court do not suffer from any infirmity to c
warrant interference.
7. The appeal is dismissed.
8.8.8. Appeal dismissed.
' .. D
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