Tarkeshwar Sahu Vs State of Bihar (Now Jharkhand)

Author:Komal Bhati, 2nd year student at ICFAI Law School, Hyderabad.

Citation: (2006) 8 SCC 560

Date of Judgement: 29th September 2006

Original Copy: View

Bench: S.B Sinha, Dalveer Bhandari

Issues in question:

• Whether it was correct and appropriate to charge the appellant sections 356 and 511 of the Indian Penal Code,1980?

Background of the case:

• On 18/02/1998, after midnight, 12-year-old Tara Muni Kumari went out of her home to answer nature’s call. The appellant then forcibly took her to his gumti which was a few feet away from her house, to have sexual intercourse with her. Allegedly, the prosecutrix shouted for help resulting in people gathering for her aid.
• The people who came to her aid included PW1 Ram Charan Baitha the informant and the father of the prosecutrix, PW2 Sahdeo Sahu, PW3 Deonandan Sahu the sarpanch of the village, PW6 Jewalal Sahu. They saved the prosecutrix before the appellant could make any attempt to rape her. By 2:30 AM, the father of the prosecutrix along with PW1 Ram Charan Baitha and other villagers who also appeared as witnesses in the case went to the police station and lodged an FIR.
• The appellant was charged under Section 376 and Section 511 of the Indian Penal Code,1860. The appellant pleaded to be innocent and defended himself by stating that he was falsely implicated in the case by PW5 Gyan Kumar Sahu and PW1 Ram Charan Baitha.
• Ten witnesses were examined by the prosecution. From PW1 to PW5 the statements consistently stated that they were neighbours to the prosecutrix and the appellant and on the date of the incident after hearing the prosecutrix shouting for help they ran to the appellant’s gumti and found the prosecutrix crying in front of the appellant. Several villagers also gathered, the prosecutrix then told everyone that she was forcibly taken by the appellant to his gumti with the intent to rape her but he failed to do so because the prosecutrix’s father and others came to her rescue after hearing her shout for help. Whereas another set of witnesses who were examined later did not state the version earlier stated and were declared hostile. Later during further cross-examination, Tara stated that she cannot tell who the person was, leading her to be declared hostile as well.
• PW 10 Assistant Sub -Inspector during the examination elaborately narrated the gumti’s description. He said that it was stated by the prosecutrix that she was taken forcibly by the appellant to rape her.
• The trial court came to the decision that the charge under sections 376 and 511 under IPC against the appellant was established by the prosecution beyond all reasonable doubt. Hence, the appellant was found guilty under sections 376 and 511 of IPC and was sentenced to seven years of rigorous imprisonment.
• Aggrieved with the trial court’s decision the appellant appealed to the Jharkhand High Court of Ranchi. The High Court found the trial court’s decision justifiable and dismissed the appeal
• The appellant then filed an appeal in the Supreme court. After scrutinizing the facts and evidence, the Supreme Court stood at the same view as previous courts and found the prosecution both truthful and credible. However, the Supreme court bought the question of whether Sections 356 and 511 of IPC were the correct sections to charge the appellant with.

Judgement:

• The court discussed that the most important ingredient to be convicted under Sec 375 punishable under Sec 376 is penetration and that stands to be missing in this case but in the present case there is still enough evidence to prove that the victim was sexually assaulted by the appellant.
• In State of U.P. v. Babul Nath, it was held by the court that penetration with force and restraint is sufficient to prove the charge of rape under Section 375.
• In State of Kerala v. Kundumkara Govindam, the Kerala High Court stated that the crux for an offence punishable under Sec 376 is rape postulating sexual intercourse.
• In Nirmal Kumar v. State, it was held that even the slightest degree of penetration is sufficient to constitute the crime of rape.
• In a similar case Raja v. State of Rajasthan even though the accused took the minor to a solitary place he could not commit rape and hence his conviction was changed from Sec 376/511 to Sec 354.
• Coming back to the present case, it becomes clear that the appellant cannot be convicted under Sec 376/511 since the most important ingredient for the conviction of the accused is penetration is missing. Imposing the question in front of the court that whether the appellant should be acquitted or be convicted for committing another offence. To overcome this, the court invoked Section 222 of the Crpc.
• Basing on the evidence it is clear that this case incorporates all the ingredients of Section 354 as well and therefore, the appellant stands guilty under Section 366 and 354 of IPC. Hence, the appellant should be imprisoned for 5 years under Sec 366 and for 2 years under Sec 354, both the sentences should run concurrently.

Analysis:

• The court invoked Section 222 of the Code of Criminal Procedure in the present case, it provides that if in a case when a major offence which the accused is charged with isn’t proved then the accused may be charged with a minor crime even though he wasn’t charged with it before.
• A similar case was examined by the court, Lakhjit Singh & Another v. State of Punjab. In this case, the accused was convicted under Sec 302 of IPC even though the ingredients for the same were missing. On further examination, it came to the knowledge of the court that the ingredients of Sec 306 IPC were present. Hence, the court converted the conviction of the accused from Sec 302 to Sec 306.
• In the present case, the appellant’s conviction was converted from Sec 366 of IPC to Sec 354 because the ingredients of Sec 366 were missing. Even though the appellant abducted the prosecutrix with the intention to rape her but she was rescued before he could ravish her and therefore, he was convicted for the offence of sexual assault. This decision was taken owing to the fact that the appellant did not penetrate, but will it be appropriate to ignore the fact that the appellant had the clear intention to rape her and would’ve succeeded if he wouldn’t have been interrupted by the rescuers.