JUDGMENT : Feeling aggrieved by the judgment of conviction and order of sentence dated 31-5-2003 passed by learned Second Additional Sessions Judge, Shivpuri in Sessions Trial No. 180/2 convicting appellant No. 1 Satish for the offence punishable under sections 342 and 376(1) of Indian Penal Code and further convicting appellant No. 2 Suneeta for the offences punishable under section 376/109 and 342 of Indian Penal Code and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, this appeal has been preferred by the appellants assailing the judgment of conviction and sentence. 2. In brief, the case of the prosecution is that on 16-5-2002, Munni (PW4) who is the mother of the prosecutrix had gone to the hand pump. At that juncture, prosecutrix and Ramdulari were inside the home. It is said that appellant No. 2 Sunita arrived there and told prosecutrix that her mother had gone to store water and the prosecutrix should accompany her. By keeping faith on the version of appellant No. 2 Sunita, the prosecutrix accompanied to Sunita's house. It is the further case of prosecution that inside the house of appellant No. 2 Sunita, appellant No. 1 Satish was present and after the prosecutrix had entered inside the house of appellant No. 2 Sunita, she (appellant No. 2) came out of her house and bolted the chain from outside. Inside the house of appellant No. 2 Sunita, Satish (appellant No.1) committed rape over the prosecutrix as a result of which, the prosecutrix raised hue and cry. On hearing shriek of the prosecutrix, Mohanlal and Lakhan arrived at the spot and it is said that Mohanlal opened the door which was closed and bolted by a chain from outside. It is also said that appellant No. 1 Satish caused marpeet to Mohanlal. 3. Since, father of the prosecutrix was in the jail, the prosecutrix along with her Tau (father's elder brother) went to police station and lodged the first information report by mentioning the cause of delay. 4. On lodging of the first information report, criminal law was triggered and set in motion. A case under sections 342, 323 and 376(1)/34, Indian Penal Code was registered against the accused persons. 4. On lodging of the first information report, criminal law was triggered and set in motion. A case under sections 342, 323 and 376(1)/34, Indian Penal Code was registered against the accused persons. In furtherance to its investigation, the investigating agency arrived at the spot, prepared the spot map; arrested both the appellants and sent appellant No. 1 Satish for medical examination where he was found to be potent by Dr. Ratnesh; injured Mohanlal was also sent for medical examination, relevant seizure memos were prepared; statements of witnesses including the prosecutrix were recorded; the prosecutrix was sent for medical examination, and a slide of her vaginal swab was sent for chemical examination. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court for trial. 5. The learned Trial Judge on the basis of allegations made in the charge sheet, framed charges punishable under sections 342 and 376, Indian Penal Code against appellant No. 1 Satish, while appellant No. 2 Sunita was charged under sections 342 and 376/109, Indian Penal Code. Needless to say that both the accused persons abjured their guilt and pleaded complete innocence. 6. In order to bring home the charges against the appellants, the prosecution examined as many as twelve witnesses and placed Ex.P/1 to P/14 the documents on record. The defence of the appellants is of false implication and the same defence they set forth in their statements recorded under section 313 Criminal Procedure Code, and in support of their defence they examined one Suraj Singh Rawat (DW1). 7. The learned Trial Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellants and eventually convicted them and passed sentence as mentioned in paragraph 1 of this judgment. 8. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 9. The learned Trial Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellants and eventually convicted them and passed sentence as mentioned in paragraph 1 of this judgment. 8. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 9. It has been contended by the learned counsel for the appellants that appellant No. 1 Satish, who according to the prosecution is the principal offender, as he has committed rape over the prosecutrix, has been released from jail after serving out the entire jail sentence and further submitted that he is now dead because he has breathed his last in a road accident and hence, he is not pressing this appeal so far as appellant No. 1 Satish is concerned. Further he has submitted that the conviction of the appellant No. 2 Sunita under sections 342 as well as 376/109, Indian Penal Code is contrary to the evidence placed on record and hence, she be acquitted from all the charges. In support of his contention, learned counsel has placed heavy reliance on a decision of the Supreme Court in the case of Dilip and another vs. State of M. P., (2001) 9 SCC 452 . According to the learned counsel, since the factum of committing rape by appellant No. 1 Satish is not proved, therefore, appellant No. 2 Sunita cannot be convicted either under section 376/109, Indian Penal Code and charge under section 342, Indian Penal Code has also not been proved against her. On these premised submissions, it has been argued that by allowing this appeal, appellant No. 2 Sunita be acquitted from all the charges and he is not pressing the appellant No. 1 Satish. 10. On the other hand, Shri P. N. Gupta, learned Public Prosecutor argued in support of the impugned judgment and submitted that merely because learned counsel for the appellants is not pressing appeal on behalf of appellant No. 1 Satish, the act of appellant No. 2 Sunita will not be diluted and she cannot be acquitted for the charges framed against her which are otherwise proved. Learned Public Prosecutor has put his inability about the knowledge of the factum of death of appellant No. 1 Satish, who is the principal offender and according to the case of prosecution, has committed rape over the prosecutrix. In support of his contention, learned Public Prosecutor has placed heavy reliance on a decision of the Supreme Court in the case of 2008 Supreme 404 . 11. I have heard learned counsel for the parties and I am of the view that this appeal deserves to be allowed in part. 12. Merely because the learned counsel for the appellants is not pressing this appeal on behalf of appellant No. 1 Satish would, in itself, is not sufficient to hold that appellant No. 2 Sunita is innocent or it can be said that the charges are not proved against her. Apart from the conviction under section 342, Indian Penal Code, appellant No. 2 Sunita has also been convicted for the offence punishable under section 376/109, Indian Penal Code. 13. In order to ascertain whether appellant No. 2 Sunita has committed the offence under section 376/109, Indian Penal Code or not, this Court is obliged to decide whether appellant No. 1 Satish has committed the offence under section 376, Indian Penal Code or not. Therefore, merely because a prayer has been made by appellant No. 1 that he is not pressing the appeal, even then, it is to be adjudged whether he has committed any offence under section 376, Indian Penal Code or not. 14. On going through the testimony of the prosecutrix, this Court finds that on the fateful day in the afternoon, she and her Bua (father's sister) Ramdulari were sleeping inside their house. At that juncture, appellant No. 2 Sunita came and told that the mother of the prosecutrix had gone to store water and the prosecutrix may accompany her to carry the utensils. Thereafter, the prosecutrix accompanied at the house appellant No. 2 Sunita where appellant No. 2 asked her to go inside the house to uplift the utensils. The prosecutrix was totally unaware that appellant No. 1 Satish was hidden inside the house of appellant No. 2 Sunita and on seeing the prosecutrix, appellant No. 1 Satish came out and by hugging threw her on the ground. Thereafter, he removed her clothes and committed Bura Kam (vile) over her. The prosecutrix was totally unaware that appellant No. 1 Satish was hidden inside the house of appellant No. 2 Sunita and on seeing the prosecutrix, appellant No. 1 Satish came out and by hugging threw her on the ground. Thereafter, he removed her clothes and committed Bura Kam (vile) over her. When her brothers Lakhan and Mohanlal came to know about the incident, they arrived at the house of appellant No. 2 Sunita where Mohanlal released the chain which was bolted on the outer door by appellant No. 2 Sunita. Appellant No. 1 Satish also gave slaps to her brother Mohanlal and ran away from the house of appellant No. 2 Sunita; although her brothers by chasing tried to catch hold of him, but failed. Thereafter, the prosecutrix narrated the entire episode to her brothers and came back to her house along with them and also narrated the incident to her Bua (aunt) Ramdulari as well as to mother Munni. Further she has stated that her father is undergoing sentence in Gwalior Central Jail and her paternal uncle Balaprasad, on the date of incident, had gone to village Padawada from where he came back only on 19th and to whom also she narrated the incident and thereafter she went to lodge the report along with her uncle Balaprasad. 15. In her testimony, the prosecutrix has simply stated that appellant No. 1 Satish committed Bura Kam over her, but nowhere she has stated any of the ingredients of section 375, Indian Penal Code. According to me, if an accused is to be convicted under section 376, Indian Penal Code, the prosecution is obliged to prove any of the ingredients as envisaged under section 375, Indian Penal Code. Since nothing has been said by the prosecutrix in her testimony so as to infer that appellant No. 1 Satish has committed the offence by his act as envisaged under section 375, Indian Penal Code, according to me, he cannot be convicted for the offence punishable under section 376, Indian Penal Code. The Court cannot read in between the lines and in absence of any specific evidence of the prosecutrix proving any of the ingredients under section 375 Indian Penal Code, appellant No. 1. Satish cannot be convicted under section 376 Indian Penal Code. Hence, his conviction under section 376, Indian Penal Code is hereby set aside. 16. The Court cannot read in between the lines and in absence of any specific evidence of the prosecutrix proving any of the ingredients under section 375 Indian Penal Code, appellant No. 1. Satish cannot be convicted under section 376 Indian Penal Code. Hence, his conviction under section 376, Indian Penal Code is hereby set aside. 16. The question now hinges as to whether appellant No. 1 Satish has committed any offence or not. On going through the testimony of the prosecutrix, this Court finds that appellant No. 1 Satish, against the will and wishes of the prosecutrix, in order to outrage her modesty and by using criminal force threw her on the ground and he also removed her clothes and therefore, according to me, appellant No. 1 Satish has committed the offence under section 354 of Indian Penal Code. His conviction is therefore, altered from section 376(1) to section 354, Indian Penal Code and considering the facts and circumstances of the case, he is sentenced to undergo five months rigorous imprisonment. 17. On going through the evidence of the prosecutrix, it is gathered that appellant No. 1 Satish wrongfully confined her in the house of appellant No. 2 and therefore, according to me, he has been rightly convicted under section 342, Indian Penal Code. 18. I shall now examine the evidence of the prosecutrix in order to ascertain what offence appellant No. 2 Sunita has committed. A charge under section 376/109, Indian Penal Code has been framed against her. However, because appellant No. 1 Satish has been acquitted from section 376 and has been convicted under section 354, Indian Penal Code, this Court cannot convict appellant No. 2 Sunita under section 376/109, Indian Penal Code, because if an accused is to be convicted under section 109, Indian Penal Code for abetting the offence, if no express provision has been specified in the Indian Penal Code for the punishment to such abetment, he shall be punished with imprisonment provided for the substantive offence. Since appellant No. 1 Satish has not been convicted under section 376, Indian Penal Code, I have no scintila of doubt in order to hold that appellant No. 2 Sunita has not committed the offence under section 376/109, Indian Penal Code. 19. The question now hinges is as to whether appellant No. 2 Sunita has committed the offence under section 354/109, Indian Penal Code or not. 19. The question now hinges is as to whether appellant No. 2 Sunita has committed the offence under section 354/109, Indian Penal Code or not. In this context, I have gone through Explanation 2 to section 107, Indian Penal Code which speaks for abetting a thing. It would be appropriate to quote section 107, Indian Penal Code and Explanation 2 which thus reads as under : "107. Abetment of a thing. - A person abets the doing of a thing, who - First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing. If an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. xxx xxx xxx Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 20. In order to hold whether the ingredients of section 107, Indian Penal Code against appellant No. 2 Sunita are proved or not, I have to examine the testimony of the prosecutrix, her brother Lakhanlal (PW1), aunt Ramdulari (PW3), mother Munnibai (PW4) and Bala Prasad (PW9). 21. Specifically, the prosecutrix saying that on a false pretext to uplift the utensils from her house, appellant No. 2 Sunita brought the prosecutrix to her house and when the prosecutrix entered in her house, appellant No. 2 Sunita bolted a chain of the outer door of her house and went away. Further, she states that appellant No. 1 Satish who was hidden inside the house of appellant No. 2 Sunita and he committed Bura Kam with her. The factum of closing door by appellant No. 2 Sunita from outside and going away from her house has also been corroborated by the evidence of Lakhanlal, who is brother of the prosecutrix and who has categorically stated that he along with his younger brother Mohanlal went to the house of appellant No. 2 Sunita where his brother Mohanlal opened the chain which was bolted from outside. Soon after the incident, the prosecutrix also narrated the entire story to her mother Munnibai (PW4) by saying that appellant No. 2 Sunita by bolting the chain from outside went away and inside her house, appellant No. 1 Satish was hidden, who hugged her and also removed her clothes. Balaprasad (PW9) who is the Tau (father's elder brother) of the prosecutrix when came back to his home on 19-5-2002, the prosecutrix also stated the act of appellant No. 1 Satish to him. Hence, it is proved that appellant No. 2 Sunita, in order to facilitate appellant No. 1 Satish to commit the offence under section 354, Indian Penal Code has played the role which would come within the purview of "doing that act" which has been explained in Explanation 2 to section 107, Indian Penal Code. 22. I do not find any merit in the contention of the learned counsel for the appellants that because the incident had occurred on 16-5-2002 and the first information report was lodged on 20-5-2002, therefore, the case of the prosecution has become weaken. In this context, I have gone through the testimony of the prosecutrix in which she has stated that her father is confined in jail and her Tau (father's elder brother) had gone to village Padawada from where he came back only on the evening of 19-5-2002. Therefore, if the first information report was lodged on 20-5-2002, according to me, explanation has been given for lodging the FIR after three days. 23. Since the principal offender appellant No. 1 Satish is sentenced to suffer five months rigorous imprisonment for the offence under section 354, Indian Penal Code, this Court cannot make any distinction while awarding the quantum of sentence and therefore, since it is proved that appellant No. 2 has committed the offence under section 354/109, Indian Penal Code, she is also required to undergo sentence of five months rigorous imprisonment for the offence under section 354/109, Indian Penal Code. 24. There is overwhelming evidence of the prosecutrix which has been discussed in detail by this Court in the foregoing paragraphs, proving the factum of committing the offence under section 342, Indian Penal Code by appellant No. 2 Sunita also, and therefore, I am of the view that the learned trial Court has rightly accorded conviction of appellant No. 2 Sunita under section 342, Indian Penal Code as well. However, her sentence is reduced from six months to five months rigorous imprisonment. 25. Learned counsel for the parties, after going through the record have contended that appellant No. 2 Sunita had already suffered jail sentence of near about five and half months, and therefore, since she has been sentenced to suffer five months rigorous imprisonment under section 354/109, Indian Penal Code and five months rigorous imprisonment under section 342, Indian Penal Code, she need not to surrender because both the sentences shall run concurrently. 26. Resultantly, this appeal succeeds in part. Conviction of appellant No. 1 Satish is altered from section 376 to section 354, Indian Penal Code and he is sentenced to suffer five months rigorous imprisonment. The conviction of appellant No. 2 Sunita is altered from section 376/109 to section 354/109, Indian Penal Code and she too is sentenced to suffer five months rigorous imprisonment and fine as imposed by the learned trial Court. Conviction of both the appellants under section 342, Indian Penal Code is hereby affirmed. However, sentence is reduced to five months rigorous imprisonment which they have already suffered. Appellant No. 1 Satish be released from jail, if he had already not been released. Appellant No. 2 Sunita is on bail she need not to surrender. Her bail bonds are discharged.