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2011 DIGILAW 518 (MP)

Gajraj Singh v. State of M. P.

2011-05-02

U.C.MAHESHWARI

body2011
JUDGMENT 1. Appellant/accused has directed this appeal under section 374 (2) of CrPC being aggrieved by the judgment dated 30.9.2003 passed by Sessions Judge, Vidisha in S.T. No. 17/03 whereby acquitting the appellant from the charge punishable under section 376 (1) of IPC he has been convicted and sentenced for the offence under section 456 of IPC with a direction to undergo RI for three years with fine of Rs. 5,000/-, in default of depositing the fine further three months imprisonment. 2. The facts giving rise to this appeal in short are that on 2.12.2002 at about 10.00 O'Clock in the night one Radhabai went to her old family house to answer the call of nature, where on her entrance in such house the appellant caught hold her hands, consequently the kerosene lamp (Chimni) fell down from her hand but prior to that she indentified the appellant in the light of such lamp. Thereafter she was taken by him in a room where the stock of cow dung was laying. In side of such room the prosecutrix was thrown on the floor and after turning her sari and petikot to the upper side he removed her undergarment and tried to commit forcefully intercourse with her, on her crying by giving a criminal threat to her life he raped her, by the time her husband and father-in-law came there, on which the appellant ran away from such place. Subsequent to incident on the next day at about 2.30 p.m. said Radhabai went to P.S. Gyaraspur and lodged the report, on which after registering the crime against the appellant for the offence under sections 376 (1), 450 and 506 of IPC the investigation was carried out. After holding the same the appellate was charge sheeted for such offences. 3. After committing the case to the Sessions Court, considering the papers of the charge-sheet and the police report the charge of sections 450 and 376 (1) were framed against the appellant, on which he abjured the guilt. Thereafter the trial was held in which as may as eleven prosecution witnesses were examined. 3. After committing the case to the Sessions Court, considering the papers of the charge-sheet and the police report the charge of sections 450 and 376 (1) were framed against the appellant, on which he abjured the guilt. Thereafter the trial was held in which as may as eleven prosecution witnesses were examined. On appreciation of evidence by holding the case of consent the appellant was acquitted from the charge of section 376 (1) of IPC while on further appreciation of same evidence instead under section 450 of IPC he was held guilty for the offence under section 456 of IPC and punished with the above mentioned sentence and fine. Being dissatisfied with such conviction and sentence the appellant has come to this Court with this appeal. 4. Shri D.S. Tomar, learned appearing counsel of the appellant after taking me through the papers of the charge sheet, exhibited documents and the deposition of examined prosecution witnesses, said that on appreciation of evidence after holding the case of consent between the appellant and prosecutrix and acquitting the appellant from the charge of section 376 and section 450 of IPC the trial Court did not have option to convict the appellant under section 456 of IPC. By referring the paras 8 to 12 of the impugned judgment and concerning evidence on which such findings are based, he said that looking to such conduct of the prosecutrix in which she went to the place of incident accordingly set programme with the appellant and accordingly the appellant also reached there then mere finding them in compromising position by the husband and father in-law of the prosecutrix the offence of criminal trespass could not be inferred against him. In addition he argued that the offence of section 456 is major offence in comparison of section 450 of CrPC., therefore, unless the charge of such section is framed against the appellant he could not be convicted under such section on the basis of the charge of section 450 of IPC. In the lack of any modification and amendment in the charge in this regard the conviction of the appellant under section 456 of IPC is not sustainable and prayed for extending the acquittal of the appellant by allowing this appeal. 5. In the lack of any modification and amendment in the charge in this regard the conviction of the appellant under section 456 of IPC is not sustainable and prayed for extending the acquittal of the appellant by allowing this appeal. 5. On the other hand responding the aforesaid arguments Shri Vijay Sunderam learned Panel Lawyer by justifying the findings of the trial Court convicting the appellant under section 459 of IPC said that the same is based on proper appreciation of evidence and also is in conformity with law, it does not require any interference at the stage of appeal. In continuation he said that although initially the charge of section 376 (1) and section 450 of IPC was framed against the appellant but on appreciation of evidence on coming to the conclusion that it was a case of consent the appellant was acquitted from such charges but in the available circumstances even in the absence of the charge of section 456 of IPC the appellant was rightly convicted and sentenced by the trial Court. In response of some query of the Court he fairly conceded that unless the charge of minor section is modified or amended by framing the charge of major offence mere on the basis of the evidence the person like appellant could not be convicted under section of such major offence. With these submission he prayed for dismissal of this appeal. 6. Having heard the counsel keeping in view their arguments, I have carefully gone through the evidence led by the prosecution and also perused the impugned judgment. In the available circumstances of the case at hand, I am of the considered view that on appreciation of evidence, if the appellant was acquitted from the charges of sections 376 (1) and 450 of IPC framed against him then on the basis of same evidence the appellant could not be convicted under section 456 of IPC. Even otherwise, it is settled proposition of law where the charge of major offence is framed then on appreciation of evidence if it is found that some minor offence of that category has been committed then without modifying or amending the charge the concerning accused could be punished under the minor offence on such evidence. Even otherwise, it is settled proposition of law where the charge of major offence is framed then on appreciation of evidence if it is found that some minor offence of that category has been committed then without modifying or amending the charge the concerning accused could be punished under the minor offence on such evidence. But whenever the charge of minor offence is framed against the accused and on appreciation of evidence, if it is found that the appellant has committed some major offence of the same nature for which the charge was not framed then the Court is bound first to amend the charge and thereafter by following the prescribed procedure enumerated under section 216 and onwards of CrPC can decide the matter. It is apparent fact that on appreciation of evidence after giving acquittal to the appellant from the charge of section 456 (1) and section 450 of IPC without framing any charge of section 456 of IPC the appellant was convicted and sentenced under such section. So firstly mere on his ground the approach of the trial Court being perverse and contrary to law is not sustainable and same deserves to be set aside. 7. Apart the above when the trial Court on appreciation of facts as stated from paras 8 to 12 in the impugned judgment came to the conclusion that it was a case of consent between the appellant and prosecutrix as with some preplanned programme with the appellant the prosecutrix went to the alleged house where the appellant also came and considering such circumstances and conduct of the prosecutrix when after acquitting the appellant from the alleged charges of sections 376 (I) and 450 of IPC mere on taking into considering the presence and intervention of the husband and father-in-law of prosecutrix on the scenario the conduct of the prosecutrix calling the appellant at her place and facilitated him to commit the alleged act, could not be ignored and it could not be said that appellant has committed any offence of the alleged trespass by entering in the alleged house of the prosecutrix. In such premises the other members of the family of the prosecutrix also did not have any authority or right to say that the invited person like appellant has committed the offence made punishable under section 456 of IPC. In such premises the other members of the family of the prosecutrix also did not have any authority or right to say that the invited person like appellant has committed the offence made punishable under section 456 of IPC. In such premises, the impugned conviction and sentence of the appellant being not sustainable under the law deserves to be and is hereby set aside by extending the acquittal to the appellant. 8. In view of the aforesaid by allowing this appeal the impugned conviction and sentence of the appellant under section 456 of IPC is set aside and he is acquitted. It appears from the record that the appellant is on bail, hence his bail bonds are hereby discharged. The amount of fine imposed by the trial Court if deposited by the appellant, then after proper verification, the same be refunded to him. 9. Appeal is allowed as indicated above.