Supreme Court reduces sentence of rape convict as offence committed before 2018 Criminal Law amendment

The Supreme Court recently reduced the sentence of a rape convict after noting that the offence had been committed before the Criminal Law (Amendment) Act, 2018, which increased the minimum punishment for rape under Section 376 of Indian Penal Code (IPC) to ten years' imprisonment [Manoj Mishra v. State of UP]..While doing so, the Bench of Justices AS Bopanna and MR Shah also set aside the conviction of the accused under gang rape charges. .The Bench held,"On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and not under Section 376 D IPC, the appropriate sentence to be imposed needs consideration. The incident in question is based on the complaint dated 09.08.2013. In this circumstance, though it is noted that Section 376 has been amended w.e.f. 21.04.2018 providing for the minimum sentence of 10 years, the case on hand is of 2013 and the conviction of the appellant was on 20.05.2015. The incident having occurred prior to amendment, the preamended provision will have to be taken note. The same provides that a person committed of rape shall be punished with rigorous imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.".The Court was hearing an appeal against a judgment of the High Court of Allahabad which affirmed the order of the trial court convicting and awarding punishment for gang rape and others offences punishable under the IPC and the Protection of Children from Sexual Offences Act, 2012 (POCSO). .While partly allowing the appeal, the Court noted that since there is no material available to indicate that the appellant has any criminal antecedents and that he is also a father of five children, there was no reason for the Court to apprehend that the appellant would indulge in similar acts in the future..Factual Background.One Ramasre alias Siri had enticed the victim aged about 14 years on August 2, 2013 and had taken her away. It was alleged that Raksharam, Nangodiya and Manoj Kumar alias Chhotkau (appellant before the Supreme Court) had cooperated with him in the alleged incident.On investigation, the prosecutrix was found by the police along with Ramasre. She was brought back and subjected to medical examination. The case was investigated and a charge sheet was filed under Sections 363, 366 (kidnapping), 376 (rape) and 506 (criminal intimidation) of the IPC and Sections 3 and 4 (penetrative sexual assault) of the POCSO Act. .The appellant was convicted of all the above mentioned offences. He faced a 20-year sentence for conviction under Section 376D IPC, which provides for punishment for gang rape. This order was challenged before the High Court, which reaffirmed the conviction and sentence of the trial court. Aggrieved by this, the appellant moved the Supreme Court. .Submissions of Parties.Counsel for the appellant contended that the trial court and the High Court had committed an error in convicting and upholding the conviction while pointing out the contradictions in the manner in which the complaint was initiated and the various statements made by the prosecutrix herself. It was therefore, contended that neither the evidence of the parents nor the evidence tendered by the prosecutrix were reliable..Standing counsel for the State of Uttar Pradesh, on the other hand, contended that certain discrepancies in the various statements of the prosecutrix cannot qualify as contradictions. When all the prosecution witnesses have given evidence in support of the prosecution and when there is categorical medical examination to indicate that the prosecutrix was pregnant as a result of the incident, the charge would stand established, it was argued..What the Court held.On the allegations of gang rape, the Court observed that there is no specific indication as to whether the other accused and the appellant had indulged in sexual atrocities against the victim."Therefore, insofar as the incident of rape attributed to the appellant it does not disclose that all the accused had committed rape on her or had the common intention and aided the commission. It is no doubt true that she refers to the incident on the day she was said to have been taken away by all the accused. In that regard except stating that she was carried to the home of a lady who they were calling as Aunty, and at her place committed sexual act there is no other evidence available on record to indicate that the spot was visited in the course of the investigation and the lady who is alleged to have aided has either been apprehended or examined. It is also not established that all of them were seen together or aided with common intention.".Thus, the charge of gang rape could not be established and only an offence under Section 376 IPC against the appellant could be made out, the Court found. .While taking note of the discrepancies in the statements given by the witnesses, the Court said that the thrust of the allegation was that the appellant had committed rape on the prosecutrix against her will. .The Bench proceeded to note that the appellant has been in custody since September 20, 2013 and that he had served the sentence for more than 8 years, which would be sufficient. .With these observations, the Court set aside the conviction under Section 506 of the IPC and modified the conviction under Section 376 D. "The conviction order made by the trial court and confirmed by the High Court under Section 376 D IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced, for the period undergone. The fine 17 and default sentence as imposed by the trial court shall remain unaltered," the judgment stated..Advocate Anoop Prakash Awasthi appeared for the appellant and Advocate Parmanand Pandey appeared for the State of Uttar Pradesh. .[Read Judgment]