HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No. 1632 of 1999
Lakhanlal Verma
...Petitioners
Versus
State of Madhya Pradesh
...Respondents
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
Dated:10/07/2009
: Judgment
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