OM PRAKASH V. STATE OF UP

 

 

OM PRAKASH V. STATE OF UP

In the Supreme Court of India

 

 

 

NAMEOFTHECASE	Om Prakash V. State of UP
CITATION	Appeal (Crl.)No.629of2006
DATEOFJUDGEMENT	May 11, 2006
APPELANT	Om Prakash
RESPONDENT	StateofUP
BENCH/JUDGE	Hon’ble Justice Arijit Pasayat
STATUTES/CONSTITUTIONINVOLVED	IndianPenalCode,1860; CriminalProcedureCode,1973
IMPORTANTSECTIONS/ARTICLES	IndianPenalCode,1860,Ss.228-A, 376, 376-A, 376-B, 376-C, 376-D   Criminal Procedure Code, 1973 — Ss. 133,

 

ABSTRACT

 

The following is a brief case analysis of Om Prakash v. State of UP appeal (crl.) 629 of 2006. This case is considered as a landmark case because the two-judge bench of the Supreme Court of India, held that when a person commits rape on a woman ‘knowing that she is pregnant’ can only be convicted if it is proven that she is pregnant or else the accused will be convicted only for rape and on the basis of this statement the Supreme Court came to its final decision. Also, the court held that the person accused of rape can now be convicted only on the basis of victim’s evidence, even if the medical reports did not prove rape. There was a mention of ‘corroboration’ and the court made it clear that it would be necessary only if there is a doubt regarding its genuiness. The case has been summarized under the following headings – Facts of the case, issues raised, arguments by both the sides (appellant and prosecution side), legal aspects involved and overview of the judgment. The main focus was on Section 376 (2) (e). Before passing a judgment, the court makes sure that it upholds the true spirit of justice which is by providing justice to the victim and punishing the wrong doer.

 

INTRODUCTION

 

 

This case is a Criminal Appeal No. 629 of 2006. This case is regarding rape where Om Prakash (victim’s relative/ appellant) tried to rape the pregnant woman (victim/ respondent).

 

FACTSOFTHECASE

 

The victim was a six months pregnant woman who was called to the court along with her husband who was arrested for challan proceedings. The accused who also attended these proceedings was the victim’s parents relative as well as the relative of the husband of the victim. While there was a delay in the proceedings, the accused asked the victim’s husband’s brother to inquire regarding the release of the challan. Seeing this as an opportunity the accused grabbed the victim to the verandah of the Zila Parishad which was near the court and tried to rape her.

The victim raised an alarm and the accused was being assaulted by a few people and was taken to the police station where an FIR was lodged. The Trial Court and the High Court convicted the accused based on the victim’s statement and eye witness and punishment of 10 years in prison was awarded under Section 376 (2) of the Indian Penal Code 1860 for raping a pregnant woman. The Supreme Court dismissed the accused’s appeal. Since there was no concrete evidence of the crime, the Supreme Court reduced the sentence from 10 years to 7 years.

 

ISSUERAISEDBEFORETHECOURT

 

The issue was whether under Section 376 (2) the conviction of the accused was valid or not?  The Supreme Court also asked whether there was any chance that the accused knew that the victim was pregnant and decided to make its decision based on this.

 

ARGUMENTSFROMTHEAPPELANTSIDE

 

The Appellant questions the legality of the judgment delivered by a learned Single Judge of the Allahabad High Court, Lucknow Bench regarding the appellant's conviction for offence punishable under Section 376(2)(e) of the Indian Penal Code, 1860 which is recorded by learned VI Additional Sessions Judge, Hardoi and the sentence of 10 years imprisonment was awarded. Om Prakash’s (accused) statement was recorded under Section 313 of the Criminal Procedure Code, 1973. The accused alleged that he was involved due to the enmity. He stated that he had come from the village along with the victim’s brother and other people for taking steps. He even made some efforts in the police station in the night. He had borrowed some money for the same. When the challan came, they stopped by at BilgramChungi and then a fight took place between the accused, PW-2 and father of the victim regarding the refund of the money. The accused was assaulted by them and hence he got involved in the criminal case. Supporting the appeal, the learned counsel for the appellant stated that the prosecution version is clearly unbelievable. It is unbelievable that the accused who had gone to help the victim's husband to get released on bail would try to rap her in broad day light. In any circumstance, it was submitted that the conditions of Section 376(2)(e) were not proved.    

 

 

ARGUMENTSFROMTHERESPONDENTSIDE

The day before the incident took place, the police of Sursa arrested Ram Saran, victim’s husband (PW-1) was brought before the Court for the challan proceedings. Om Prakash (accused) was related to the victim’s parents and met them in the Court premises. Jaipal (PW-2) Ram Saran’s brother was also present there along with the victim and she was talking to him regarding her husband’s bail. Om Prakash sent Jaipal to inquire whether the challan had come or not. Later, at around 3.00 p.m., the accused pulled the victim and he started raping her in the veranda of Zila Parishad which is near the Court. When the victim raised an alarm, Jaipal and Ram Lal came and assaulted Om Prakash who was raping her and Om Prakash was taken to the police station. The victim gave oral information which was recorded as Chik number 126 Exhibit A-1 and the entry was made in the general diary after which the case was registered. Internal examination of the victim’s body was done by Dr. Purnima Srivastava (PW-3) and the medical report was marked as Exhibit A-2 and the supplementary report was marked as Exhibit A-3. The medical examination of accused was done by Dr. P.K. Gangwar (PW-4) and the report was marked as Exhibit A-4. The accused’s underwear was seized in the police station and the seizure memo was marked as Exhibit A-6 and the victim’s petticoat was seized and the seizure memo was marked as Exhibit A-7.  Shri Mahesh Lal Vadhuria (PW-6) was in charge of the investigation who prepared the outline of the place where the incident occurred (Exhibit A-8). The accused’s underwear and the victim’s petticoat were sent for chemical (Exhibit A-21). After the investigation was completed, a charge sheet was filed against Om Prakash and and then the case was presented to the Chief Judicial Magistrate, Hardoi of the sessions court. Om Prakash was charged under Section 376 IPC. But he did not accept the charges and demanded for a trial. To support its version, the prosecution examined the victim (PW-1) ,Jaipal (PW-2), Dr. Smt. Purnima Srivastava (PW-3), Dr. P.K. Gangwar (PW-4),   Shri Uttam Kumar (PW-5), Shri Mahesh Lal Vadhuria (PW-6) and head constable Shri Jitendra Singh (PW-7).

 

 

 

RELATED PROVISIONS

 

The prosecution does not state the name of the victim. Section 228-A of IPC says that revealing identity of the victim in certain offences is punishable. Publishing or printing in any matter which is likely to reveal the identity of any person against whom a crime under the following -  Sections 376, 376-A, 376-B, 376-C or 376-D is claimed to have been committed can be punished. But the restriction does not include publication or printing of judgment by the High Court or Supreme Court. This is kept in mind in order to prevent social victimization of the victim of a sexual offence which lead to the enactment ofSection 228-A. It is considered appropriate if the judgments in the Courts (Supreme Court or High Court or any lower Court) the victim’s name should not be mentioned so even in this case they have agreed to refer to her as the ‘victim’ in the judgment. The same thing was highlighted in the case of State of Karnataka v. Puttaraja¹.Om Prakash’s (accused) statement was recorded under Section 313 of the Criminal Procedure Code, 1973.

Section 313 – “Power to examine the accused.”

This case mainly focuses on Section 376.

Section 376(1) – “Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.”

Section 376(2)i.e. some special case of rape is punishable with stricter punishment. Especially, Section 376(2)(e) – “Whoever commits rape on a woman knowing her to be pregnant”.

 

JUDGEMENT

 

The victim cannot be considered an associate to the crime of sexual assault and her statement does not require corroboration from any other evidence and not even the evidence of a doctor. So even if the doctor reveals that the evidence doesn’t prove an attempt to rape doesn’t mean that the victim’s statement shouldn’t be believed. Normally, it takes a lot of courage for the victim of sexual assault to come out to her own family, let alone public. According to the Benchconsisting of Arijit Pasayat and S.H. Kapadia, the Indian women hide such a crime because she knows that it damages her family’s reputation and prestige and very rarely she goes to the police station and files a complaint against the wrong doer. There is no logical reason for a married woman to falsely involve the accused after getting her image and reputation damaged. A very similar precedent happened in the case of BharwadaBhoginbhaiHirjibhai v. State of Gujarat². The court felt that asking for corroboration in such offences was like inflicting more pain to the victim.

But over the years, the need for medical evidence reduced. So the principle is that “the victim of the rape is not an accomplice to the crime and her statement should be relied upon and the need for corroboration is only when the court cannot completely rely on the prosecutrix’s statement.”

The Trial Court came to the conclusion that there was a complete possibility of the accused knowing the woman was six months pregnant. But there is a difference between possibility and certainty. When a case covered under Section 376(2)(e) is looked into, what should be seen is whether the evidence proves the knowledge of the accused. Just possibility of knowledge is not enough. In cases of such serious nature, the prosecution should establish evidence that the accused knew that she was pregnant so that it is certain because such cases demand stringent punishment. But, the minimum sentence mentioned under Section 376(1) IPC is applicable here.

The two-judge bench of the Supreme Court held that when the accused is committing rape on a woman‘knowing her to be pregnant’ can be convicted only if it is proven that she is pregnant or else the accused will be convicted only for rape. Since, the prosecution could not proper evidence that the victim was pregnant when the crime occurred and that the accused was aware that she was pregnant. So Section 376(2)(e) IPC was ruled out and Section 376(1) IPC was applied in this case and the sentence was reduced from ten years to seven years.

 

 

 

 

 

 

 

 

CONCLUSION

 

Just like how there are two sides of a coin, there are also two sides to a judgment- positive and negative. The judgment in this case has made it difficult for rapists to escape from the crime they have committed and give the worst possible punishment. “The victim is not an accomplice to the crime and that her statement should be considered but only in cases where the court is unable to rely solely on the victim’s statement is when corroboration is needed. But at the same time, it can misused where false rape cases are filed because of this principle and the judges also believe that Indian women are noble and pure who are not capable of doing any wrong. This thinking is wrong but this definitely another stepping stone in the women’s rights movement where the victim doesn’t have to face social victimization.