HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No. 1632 of 1999
State of Madhya Pradesh
Appeal U/s 374(2) of the Cr.P.C.
! Shri Sunil Sahu, counsel for the appellant
^ Shri Pradeep Singh, Panel Lawyer for the State
HONBLE SHRI RAJESHWAR LAL JHANWAR, J
J U D G M E N T
(Delivered on 10 .07.2009)
1. The appellant has preferred this criminal appeal against the judgment of conviction and order of sentence dated 07-06-1999, passed by the 2nd Additional Sessions Judge, Baloda Bazar, District Raipur in S.T.No.451/1996, whereby the learned 2nd Additional Sessions Judge while acquitting the appellant of the charge under Section 376 of the IPC, convicted him for commission of minor offence punishable under Section 509 of the IPC and sentenced him to undergo simple imprisonment for 6 months and to pay a fine of Rs.500/-, in default of payment of fine to further undergo simple imprisonment for 3 months.
2. The prosecution story in short is that on 7-8- 1996 at 8.00 am. Man Bai (P.W.-4) along with her brother-in-law Doctor Sahu (P.W.1) had gone to plough their field. After 1:30 to 2:00 hrs., leaving Man Bai in the field, Doctor Sahu went adjacent field to pluck datoon. Man Bai was alone in the field. The appellant came there and caught hold her from her back side and attempted to open her saree. She raised hue & cry, thereupon; the accused slapped her and covered her mouth with his hands. Doctor Sahu, on hearing the hue & cry came there and on seeing Doctor Sahu, the appellant fled from the scene of occurrence. Man Bai & Doctor Sahu thereafter came back to their home. After few hours Doctor Sahu came from outside and told Man Bai that some persons have caught a boy, go and identify him. Both of them went there and identified the appellant as accused. The matter was reported by Man Bai. First Information Report (Ex.P/1) was registered in the Police Station at Palari. Investigation took place and after completion of the investigation, charge sheet under Section 376 read with Section 511 was filed in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Sessions Judge, Raipur. The learned Sessions Judge made over the case to the 2nd Additional Sessions Judge, Baloda Bazar for trial. The learned 2nd Additional Sessions Judge has framed charge under Section 376 of the IPC against the appellant. Charge was read over and was explained to the appellant. The appellant pleaded innocence and his defence was that he has been falsely implicated in the offence.
3. The learned 2nd Additional Sessions Judge, after evaluating the evidence available on record and hearing the counsel for respective parties, acquitted the appellant- Lakhanlal Verma under Section 376 of the IPC, however, convicted him under Section 509 of I.P.C., as mentioned above.
4. I have heard learned counsel appearing for both the parties at length and also perused the material available on record.
5. Relying upon the statement of Man Bai (P.W.4), the learned Court below has held that the appellant did not commit offence punishable under Section 376 of the IPC or Section 376 read with Section 511 of the IPC or Section 354 of the IPC and held that the offence committed by the appellant falls under Section 509 of the IPC. Therefore, the learned Court below convicted and sentenced the appellant under Section 509 of the IPC and acquitted him of the charges under Section 376 of the IPC.
6. Sections 375 reads as under:-
375 .Rape- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-
First.- Against her will
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- with or without her consent, when she is under sixteen years of age.
7. Section 354 of the IPC reads as under:-
354. Assault or criminal force to woman with intent to outrage her modesty. -Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
8. Section 509 of the IPC reads as under:-
509. Word, gesture or act intended to insult the modesty of a woman.- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
9. Section 222 of the Cr.P.C. reads as under:-
222. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
3. When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
4. Nothing in this section shall be deemed to authorize a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
10. From reading all the above sub-Sections together, it is clear that the Court may convict and sentence a person for an offence which is minor in comparison to the one for which he is tried. The above provision does not authorize the Court to convict and sentence to an offender for an offence which is not minor in comparison to the offence for which offender is charge sheeted and tried. From reading Section 376, 354 & 509 of the IPC it is manifest that no ingredient of offence punishable under Section 509 of the IPC falls within any of the ingredient of offence punishable under Section 376 or 354 of the IPC. Therefore, if an offender has been charged and tried for commission of offence punishable under Section 376 of the IPC and after trial it comes to the conclusion that offence under Sections 376 of the IPC has not been proved, the Court below has no authority to convict and sentence to the offender for an independent offence i.e. offence under Section 509 of the IPC, which is not minor in nature of offence punishable under Section 376 of the IPC. Therefore, the learned trial Court erred in convicting and sentencing the appellant under Section 509 of the IPC in the instant trial which was conducted by the trial Court for the offence punishable under Section 376 of the IPC.
11. So far as evidence is concerned, Man Bai (P.W.4), in her cross-examination of para-5 has stated that vfHk;qDr us eq>s uaxk ugha fd;k Fkk A vfHk;qDr Hkh uaxk ugha gqvk Fkk A ;g dguk lgh gS fd eSa >qd dj fuankbZ dk dke dj jgh Fkh rks ihNs ls vfHk;qDr vk;k vkSj esjs dNksjk dks [khapk rks eSa vfHk;qDr dks xkyh nh ftl ij vfHk;qDr us ,d >kiM+ ekjk vkSj Hkkx x;k A She also stated in para-8 that vfHk;qDr dks Hkkxrs le; ihNs ls ns[kh Fkh mldk psgjk ugha ns[k ik;h Fkh A esjs nsoj MkWDVj lkgw Hkh vfHk;qDr dks Hkkxrs gq, ns[kk gS mlus Hkh vkeus&lkeus ugha ns[kk gS A In para-9 she further stated that esjs nsoj MkWDVj us vfHk;qDr dks 'kd ds vk/kkj ij idM+ok fn;k A Another witness P.W.1- Doctor Sahu stated that "esjh HkkHkh ekuckbZ [ksr fuankbZ dj jgh Fkh A esjh HkkHkh ekuckbZ MkWDVj&MkWDVj dh vkokt nh ftl ij eSa vkokt lqudj nkSM+rs gq, vk;k rks ns[kk fd esjh HkkHkh lksbZ gq, Fkh vkSj vfHk;qDr mlds mij p<+k gqvk Fkk vkSj mldk eqag nck;k gqvk Fkk A But he did not state the above statement before the police under Section 161 of Cr.P.C. (Ex.D-1). There are only two witnesses of the incident. There statements are contradictory to each other. Man Bai (P.W.4) even did not see the face of the appellant. His brother-in-law Doctor Sahu exaggerated his statement but his evidence is contradictory with his previous statement recorded by the police under Section 161 of the Cr.P.C, on material point. In these circumstances, their evidence is contradictory and unreliable. Therefore, no conviction is possible only on the basis of these two witnesses.
12. So far as legal part is concerned, the learned trial Court eared in recording the conviction and sentencing the appellant under Section 509 of the IPC for which appellant neither has been charged nor the offence is minor offence of Section 376 of the IPC. So far as evidence is concerned there is no reliable evidence available against the appellant which may lead conviction for commission of any of the offence.
13. In the result, the appeal succeeds. Conviction for offence under Section 509 of the IPC recorded by the trial Court and sentenced passed by the trial Court for committing the said offence is set aside. The appellant is acquitted of the offence under Section 509 of the IPC. He be set at liberty, forthwith.
J U D G E