Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 716 (GAU)

Chandra Mohan Barman v. State of Tripura

2012-06-08

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. Against the petitioner the prosecution was launched on the written complaint filed by the prosecutrix stating that the petitioner used to visit the house of the prosecutrix in absence of her parents and cohabit with her and induced her deceitfully stating that the petitioner would marry her. As a result, she became pregnant due to repeated cohabitation. As per the direction of the petitioner the prosecutrix had aborted her pregnancy once. They continued to cohabit even thereafter. Again she became pregnant. When the prosecutrix requested the petitioner to marry her, he started avoiding her. Being annoyed, the prosecutrix filed a written complaint and as the written complaint revealed a cognizable offence, Melaghar P.S. Case No. 80/96, under Section 493/315/376 of IPC, was registered and thereafter on completion of the investigation, the charge sheet was submitted against the petitioner and cognizance was taken under Section 376/315 of the IPC. The case was committed eventually to the Court of Sessions, as the offences were exclusively triable by the Court of Sessions. The Sessions Court, however, transferred the case to the Court of learned Assistant Sessions Judge, West Tripura, Agartala, Court No. 1 for conducting the trial. The following charges were framed against the petitioner:- (i) That from the middle part of January 1995 (from the first part of Magha 1401 B. S.) to 18.10.96 night at about 20.00 hrs. (First Kartika, 1403 B.S.) in different times at Bajendranagar under Melaghar Police Station, you committed rape on Smti. Sita Rani Barman, D/o Sri Lal Mohan Barman of Rajendra Nagar, P.S. Malaghar, West Tripura and thereby committed an offence punishable under Section 376 of the I.P.C., and within my cognizance. And, I hereby direct that you be tried by this court on the said charge. (ii) That in the middle part of April, 1995 at any time at Rajendranagar under Melaghar Police Station, you did an act, to wit aborted 3 months pregnancy of Smti. Sita Rani Barman causing used quack medicine before the birth of her child, with the intention of thereby preventing that child from being born alive, and by that act did prevent that child from being born alive and the said act was not done in good faith for the purpose of saving the life of the mother, and thereby committed an offence punishable under Section 15 of the I.P.C. and within my cognizance. And I hereby direct that you be tried by this Court on the said charge. The petitioner pleaded not guilty and claimed to be tried. 2. The prosecution to bring home the charge examined as many as 27 witnesses including the Investigating Officer and admitted 12 documents as Exbt.1 to 12. On the other hand, the defence case as it transpires from the record is of the total denial and the defence did not adduce any witness. After conclusion of the trial the Assistant Sessions Judge, West Tripura, Agartala held that the charge under Section 376 of the IPC and the charge under Section 315 of the IPC could not be proved by the prosecution beyond reasonable doubt, but the learned Assistant Sessions Judge held that even though the major charges were not proved beyond reasonable doubt, the offence under Section 417 of the IPC for committing sexual intercourse with the prosecutrix on assurance of marriage had been proved and hence, the petitioner was convicted under Section 417 of IPC without framing any charge in exercise of powers provided under Section 222 of the Cr. P.C. and the petitioner was sentenced to suffer R.I. for a term of one year with fine of Rs. 5,000/- and in default of payment of fine to suffer S.I. for a further period of three months. It was also directed that the fine money, if realized, should be paid to the prosecutrix as compensation. The said judgment of conviction and the consequential order of sentence were returned by the Assistant Sessions Judge, West Tripura, Agartala vide judgment and order dated 14.11.2000 in S.T. No. 95(WT/S) of 1998. 3. Being aggrieved by the judgment of conviction and order of sentence dated 14.11.2000, the petitioner filed an appeal under Section 374 of the Cr. The said judgment of conviction and the consequential order of sentence were returned by the Assistant Sessions Judge, West Tripura, Agartala vide judgment and order dated 14.11.2000 in S.T. No. 95(WT/S) of 1998. 3. Being aggrieved by the judgment of conviction and order of sentence dated 14.11.2000, the petitioner filed an appeal under Section 374 of the Cr. P.C. in the Court of the learned Sessions Judge, West Tripura, Agartala as the punishment was for one year R.I. Learned Sessions Judge by the judgment and order dated 04.08.2004 passed in Criminal Appeal No. 71(4) of 2000 affirmed the judgment of conviction and order of sentence dated 14.11.2000 as passed by the learned Assistant Sessions Judge, West Tripura, Agartala in S.T. No. 95(WT/S) of 1998 and held that "I have perused the judgment of the learned court below wherefrom I find that he has discussed every thing in his judgment and also assigned reasons why he has convicted the appellant for lesser offence. On perusal of the judgment of the Court below I did not find any illegality or infirmity in it and as such find no scope to interfere with the same. The appeal referred by the appellant appears to me to devoid of any merit and as such liable to be dismissed." 4. By this revisional petition, as filed under Section 397 read with Section 401 of the Cr. P.C., the said judgment and order dated 04.08.2004 as passed by the learned Sessions Judge, West Tripura, Agartala has been put under challenge. 5. Ms. P. Dhar, learned counsel appearing for the petitioner with sufficient emphasis submitted that without framing charge under Section 417 of the IPC, no judgment of conviction should have been returned by the learned court of Assistant Sessions Judge, West Tripura, Agartala Court No. 1. According to her, the offence under Section 417 of the IPC is not a cognate offence to Section 376 or Section 315 of the IPC and as such though the punishment attached to the offence as punishable under Section 417 of the IPC carries lesser period of imprisonment but that by itself would not authorize the trial court to convict the accused in exercise of powers under Section 222 of the Cr. P.C. Learned counsel appearing for the petitioner relied on a decision of the Apex Court as rendered in Shamnsaheb M. Multtani vs. State of Karnataka, as reported in (2001)2 SCC 577 , wherein the Apex Court held that:- 14. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits to convict the accused of the offence of which he is shown to have committed though he was not charged with it. But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge. 15. Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The Section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different, situation. 222. (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. 16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 6. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 6. Learned counsel also relied on the Black's Law Dictionary (Ninth Edition), where the 'cognate offence' has been depicted as under: Cognate offense (1866) A lesser offense that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category. For example, shoplifting is a cognate offense of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property. Cf. lesser included offense. [Cases: Indictment and Information - 191.1 7. In Rafiq Ahmad alias Rafi vs. State of Uttar Pradesh, as reported in (2001)8 SCC 300, the Apex Court observed as under:- 44. Alike or similar offences can be termed as 'cognate offences'. The word 'cognate' is a term primarily used in civil jurisprudence particularly with reference to the provisions of the Hindu Succession Act, 1956 where Section 3(c) has used this expression in relation to the descendants of a class of heirs and normally the term is used with reference to blood relations. Section 3(c) of the Hindu Succession Act defines "cognate" as follows: 3(c) Cognate – One person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males. 45. The Encyclopedia Law Lexicon, explain the word cognate in relation to civil law as follows: Cognate – According to Hindu Law it is a class of heirs, descended or borrowed from the same earlier form. It means blood relation including female relation. Word cognate literally means akin in nature, Ram Briksh vs. State, 1978 All Cri C 253. This expression has also been recognized and applied to the criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree have been understood to be cognate offences. 46. This expression has also been recognized and applied to the criminal jurisprudence as well not only in the Indian system but even in other parts of the world. Such offences indicate the similarity, common essential features between the offences and they primarily being based on differences of degree have been understood to be cognate offences. 46. Black's Law Dictionary (Eighth Edition, p. 1111) defines the expression 'cognate offences' as follows: Cognate offences – A lesser offence that is related to the greater offense because it shares several of the elements of the greater offense and is of the same class or category. For example, shoplifting is a cognate offence of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property. 47. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the Courts can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore indicated. 48. We may now refer to certain cases where this Court had the occasion to deal with such issues. Certain divergent views were also expressed in relation to conversion of an offence from a grave to a less grave offence. In the case of Lakhjit Singh vs. State of Punjab 1994 Supp. (1) SCC 173, the accused was charged with an offence under Section 302 IPC and convicted and sentenced for the said offence, both by the Trial Court as well as the High Court. In appeal, a Division Bench of this Court considered whether the offence could be converted and the Appellant could be convicted for an offence under Section 306 IPC. Having regard to the evidence adduced by the prosecution and the answer of the accused to the questions put to him under Section 313 of the Code of Criminal Procedure, the Court was satisfied that the accused had fair notice of the allegations to attract an offence under Section 306 IPC and as such there was no denial of fair trial to the accused. Finally, the Court convicted him of an offence under Section 306 IPC. However, a different view was expressed in a subsequent judgment by another Division Bench of this Court in the case of Sanagaraboina Sreenu vs. State of A.P. (1997)5 SCC 348 . 49. Finally, the Court convicted him of an offence under Section 306 IPC. However, a different view was expressed in a subsequent judgment by another Division Bench of this Court in the case of Sanagaraboina Sreenu vs. State of A.P. (1997)5 SCC 348 . 49. In Sanagaraboina Sreenu case (1997)5 SCC 348 also the Court was dealing with the situation where the accused was charged under Section 302 but had been convicted under Section 306 IPC. This Court felt that having acquitted the accused for an offence under Section 302 which was the only charge against the accused, he could not have been convicted for an offence punishable under Section 306 IPC as both these offences were distinct and different. Resultantly, the accused was acquitted. 50. The controversy arising from these two judgments of this Court came up for consideration before a three Judge Bench of this Court in the case of Dalbir Singh vs. State of U.P. (2004)5 SCC 334 , wherein the accused was charged with an offence under Sections 302, 498A and 304B IPC, but finally was convicted under Section 302 by the Trial Court and sentenced to death. 0n appeal, the High Court acquitted him of the charge under Section 302 IPC opining that the evidence on record clearly established the charge under Section 306 IPC. Keeping in view the decision in the case of Sanagaraboina Sreenu (supra), the High Court had concluded that the accused could not be convicted under Section 306 and on this basis convicted him under Section 498A alone. The argument raised before this Court was that the basic ingredients were distinct and different. The accused was not aware of the basic ingredients, the facts sought to be established against him were not explained to him and he did not get a fair chance to defend himself. Resultantly, he ought not to have been convicted for an offence under Section 498A IPC. 51. Rejecting all these contentions, this Court, while convicting the accused for an offence under Section 306, held that the law stated in Sanagaraboina Sreenu (supra) was not correct enunciation of law and held as under: (Dalbir Singh case, (2004)5 SCC 334 , SCC petitioner. 345-46, paras 16-18) 16. This question was again examined by a three Judge Bench in Gurbachan Singh vs. State of Punjab AIR 1957 SC 623 in which it was held as under:- 7. 345-46, paras 16-18) 16. This question was again examined by a three Judge Bench in Gurbachan Singh vs. State of Punjab AIR 1957 SC 623 in which it was held as under:- 7. RIM judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Code of Criminal Procedure, it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu AIR 1957 SC 623 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC. 18. The next question to be seen is whether the accused was confronted with the aforesaid features of the prosecution case in his statement under Section 313 Code of Criminal Procedure. His statement runs into six pages where every aspect of the prosecution case referred to above was put to him. He also gave a long written statement in accordance with Section 233(2) Code of Criminal Procedure wherein he admitted that Vimla committed suicide. His statement runs into six pages where every aspect of the prosecution case referred to above was put to him. He also gave a long written statement in accordance with Section 233(2) Code of Criminal Procedure wherein he admitted that Vimla committed suicide. He also admitted that the scooter and color TV were subsequently given to him by his in laws but came out with a plea that he had paid money and purchased the same from his in laws. There is no aspect of the prosecution which may not have been put to him. We are, therefore, of the opinion that in view of the material on record, the conviction under Section 306 IPC can safely be recorded and the same would not result in failure of justice in any manner. The record shows that the accused was taken into custody on 29.3.1991 and was released from jail after the decision of the High Court on 20.3.1997 and thus he has undergone nearly six years of imprisonment. In our opinion, the period already undergone (as under trial and after conviction) would meet the ends of justice. 52. We may also make a reference to another three Judge Bench judgment of this Court in the case of Shamnsaheb M. Multtani vs. State of Karnataka (2001)2 SCC 577 which was not noticed in the case of Dalbir Singh (supra). In that case, the accused initially had been charged with an offence under Section 302 IPC but was convicted for an offence under Section 304B IPC as according to the High Court there was no failure of justice. 53. This Court Om Shamnsaheb case, (2001)2 SCC 577 , found error in the judgment of the High Court convicting the accused of an offence under Section 304B as the accused was not put at notice of the adverse presumption that the Court is statutorily bound to draw on satisfaction of two ingredients of Section 304B. Therefore, this Court remanded the matter. It also noticed the conflict of views expressed in the cases of Lakhjit Singh (supra) and Sanagaraboina Sreenu (supra) and mentioned that in 'cognate offences', the main ingredients are common and the one amongst them that is punishable with a lesser sentence can be regarded as a minor offence. 54. The Court, finding that the ingredients of Sections 302 and 304B are different, held as follows:- 15. 54. The Court, finding that the ingredients of Sections 302 and 304B are different, held as follows:- 15. Section 222(1) of the Code deals with a case when a person is charged with an offence consisting of several particulars. The section permits the court to convict the accused of the minor offence, though he was not charged with it. Sub-section (2) deals with a similar, but slightly different situation. 222 (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. 16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 17. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (husband or relative of husband of a women subjecting her to cruelty). As the word cruelty is explained as including, inter alia. Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge? XXX XXX XXX 30. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it. 31. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts onto him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B IPC and sentenced to the serious punishment prescribed there under, which mandates a minimum sentence of imprisonment for seven years. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal. XXX XXX XXX 35. As the Appellant was convicted by the High Court under Section 304B IPC, without such an opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the Appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304B IPC. 55. This concept of punishing the accused for a less grave offence than the one for which he was charged is not unique to the Indian Judicial System. It has its relevancy even under the English jurisprudence under the concept of alternative verdicts. 56. In R. vs. Coutts, 2006 UKHL 39(HL), the appellant was convicted by the jury of the murder of the deceased on an indictment charging him with that crime alone. The deceased had died by accident when the Appellant and she had been engaged in consensual sexual asphyxial activity. The House of Lords considered whether the issue of manslaughter should have been left to the jury as an alternative verdict which they could return under Section 6(2) of the Criminal Law Act, 1967. The Court of Appeal rejected the Appellant's contention that this issue should have been left to the jury by the trial judge on the ground that for the judge to introduce the possibility of a verdict of manslaughter on these grounds would have transformed the nature of the case that the Appellant was required to meet. 57. The Court of Appeal rejected the Appellant's contention that this issue should have been left to the jury by the trial judge on the ground that for the judge to introduce the possibility of a verdict of manslaughter on these grounds would have transformed the nature of the case that the Appellant was required to meet. 57. The Appellant in Coutts case, 2006 UKHL 39 (HL), argued in appeal that if the trial judge fails to leave to the jury an intermediate verdict in the alternative which is raised by credible evidence, that is an irregularity which will render the verdict unsafe. The Crown took the stand that this was a deliberate and sadistic killing. In resolving this issue, the House of Lords was simultaneously faced with the broader question concerning the duty and discretion of trial judges to leave alternative verdicts of lesser included offences to the jury where there is evidence which a rational jury could accept to support such a verdict but neither prosecution nor defence seek it. 58. Lord Bingham of Corn hill spoke thus on behalf of his four learned colleagues: 23. The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the Defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A Defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency. (Emphasis supplied) 59. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A Defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency. (Emphasis supplied) 59. Therefore, the Lords were of the unanimous opinion that the judge should have left a manslaughter verdict to the jury and his failure to do so was a material irregularity. The Court of Appeal, following the advice of the House of Lords, quashed the Appellant's conviction and ordered a retrial. 60. As is evident from the above stated principles of law in various judgments, there is no absolute bar or impediment, in law, in punishing a person for an offence less grave than the offences for which the accused was charged during the course of the trial provided the essential ingredients for adopting such a course are satisfied. 8. In Abu Salem Abdul Qayoom Ansari vs. State of Maharashtra & another, as reported in (2011)11 SCC 214 , the Supreme Court held that:- 88. There are two ways in which to describe a lesser crime. Either every single element of a lesser crime should be component of the greater crime on the basis of their statutory definitions; or the allegations of the larger crime in the indictment should include all the factual details of the lesser crime. (See Submission of Lesser Crimes, Columbia Law Review, Volume 56(6), 1956 pp. 888-902, at 888-890). 89. Section 21(b) of the Act seems to embody the latter of these two principles. This means that a crime which can be framed from out of the factual averments themselves (i.e. evidence submitted) before the requested State at the time of extradition, can be the one upon which the fugitive can be tried. A lesser crime can be a cognate crime, in that it shares its roots with the primary crime, even though it may be independent of it. 9. According to the learned counsel for the petitioner, there is no common element between the offence for which the petitioner was charged and with which the petitioner has been convicted and as such the offence punishable under Section 376(1) of the IPC or under Section 315 of the IPC does not bear 'cognate' elements with the offence punishable under Section 417 of the IPC. If the Section 376 of the IPC is not cognate to the said offence, the trial court cannot have any jurisdiction to convict the petitioner under Section 417 of the IPC without framing any charge and giving all sorts of opportunities as available to an accused at the trial. 10. On the other hand, Mr. A. Ghosh, learned Additional P.P. vehemently resisted the very method, the learned counsel for the petitioner adopted for interpreting the provisions as available under Section 221 and 222 of the Cr. P.C. He submitted that there is certain commonality between Section 376(1) of the IPC and Section 417 of the IPC. Whereas the commission of 'rape' is sine qua non to constitute the offence, under Section 376(1) of the IPC committing harm to the reputation of a person by deception would constitute cheating and the offence of cheating is punishable under Section 417 of the IPC. When rape or attempt to rape or element of physically violating a woman is proved, then it can be said that the said element of physical violation has harmed the reputation, and if it is proved that the same has been committed by deception then the offence would come definitely under Section 417 of the IPC. Therefore, it cannot be said that there is no commonality of the elements of the offence under Section 376(1) of the IPC and Section 417 of the IPC. This legal point requires a comprehensive analysis else the interpretative obfuscation that shrouds the controversy cannot be dispelled. 11. The Apex Court in Sangaraboina vs. State of Andhra Pradesh, as reported in (1997)5 SCC 348 held that:- 2. This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC which was the only charge framed against him = the High Court could not have convicted him of the offence under Section 306 IPC. It is true that Section 222 Cr. P.C entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr. P.C for the two offences are of distinct and different categories. P.C for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal death those of Section 306 IPC are suicidal death and abetment thereof. The Supreme Court in this decision has highlighted that a remote commonality would not provide the jurisdiction under Section 222 of the Cr. P.C. to the court. It is to be noted here that the apex Court in Rafiq Ahmed (supra) held that Sangaraboina (supra) was in correct enunciation of law. However, the apex court in Para 66 of Rafiq Ahmed (supra) again highlighted for the essential ingredients for adopting such a course. It is eminently evident from the excepts from Rafiq Ahmed(supra) that the dissent or disapproval was concerned with treating or considering the offence under Section 306, IPC as not cognate to the offence under Section 302, IPC. In Rafiq Ahmed (supra), it has been held in Para 16 with certitude that the test of minor offence is not merely that the prescribed punishment is less than the major punishment. Only if the offences are cognate offences, wherein the main ingredients are common to the one punishable with lesser sentence can be regarded as minor offence vis-a-vis the other offence. In Abu Salem Abdul Qayoom Ansari (supra), the apex Court enunciated this aspect even more specifically. Either every single element of a lesser crime should be component of the greater crime on the basis of their statutory definitions or the allegations of the greater crime in the indictment should include all the factual details of the lesser crime. 12. In Sukhram vs. State of Maharastra, as reported in AIR 2007 SC 3050 , the Apex Court held that:- True that Section 222 Cr. P.C. clothes the Court with the power to convict a person of an offence which is minor in comparison to the one for which he is charged and tried, but by no stretch of imagination, offences under Sections 304B and 498A IPC, under which appellant A-2 was convicted by the Trial Court, could be said to be minor offences in relation to that under Section 201 IPC, for which he was charged. In fact, the three offences are distinct and belong to different categories. The ingredients of the offences under the said Sections are vastly different. Therefore, Section 222 Cr. P.C. had no application on facts in hand. In fact, the three offences are distinct and belong to different categories. The ingredients of the offences under the said Sections are vastly different. Therefore, Section 222 Cr. P.C. had no application on facts in hand. In that case the apex Court had set aside the conviction and sentence as passed against the appellant A-2 for improper application of the authority as conferred by Section 222 of the Cr. P.C. 13. In Tarkeshwar Sahu vs. State of Bihar (now Tharkhand), as reported in (2006)8 SCC 560 , the apex Court while examining the scope and ambit of Section 222 of the Cr. P.C. illustrated thus:- 23. In the instant case, the accused has been charged with Sections 376/511 IPC only. In absence of charge under any other section, the question now arises whether the accused should be acquitted or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a girl. In a situation like this, we would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it. Section 222 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 authorise 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." 24. (4) Nothing in this section shall be deemed to authorise 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." 24. In this section, two illustrations have been given which would amply describe that when an accused is charged with major offence and the ingredients of the major offence are missing and ingredients of minor offence are made out then he may be convicted for the minor offence even though he was not charged with it. Both the illustrations given in the said section read as under:- (a) A is charged under Section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted to him as a carrier. It appears that he did commit criminal breach of trust under Section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406. (b) A is charged under Section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that Code. 25. In Lakhjit Singh and another vs. State of Punjab, 1994 Supp (1) SCC 173, this Court had an occasion to examine the similar question of law. In this case, the accused was charged and tried under Section 302 of the Indian Penal Code but ingredients of Section 302 were missing but ingredients of Section 306 were present, therefore, the Court deemed it proper to convert the conviction of the appellant from Section 302 to Section 306 IPC. In this case, it was urged that the accused cannot be tried under Section 306 IPC because the accused were not put to notice to meet a charge under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 IPC; therefore, presumption under Section 113A of Indian Evidence Act cannot be drawn and consequently a conviction under Section 306 IPC cannot be awarded. According to this Court, in the facts and circumstances, Section 306 was attracted and the appellants' conviction under Section 302 IPC was set aside and instead they were convicted under Section 306 IPC. 26. According to this Court, in the facts and circumstances, Section 306 was attracted and the appellants' conviction under Section 302 IPC was set aside and instead they were convicted under Section 306 IPC. 26. A three Judge Bench of this Court in the case of Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paragraphs 16, 17 and 18 of the judgment, which read as under: 16. What is meant by a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minor offence vis-a-vis the other offence. 17. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the world cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. As the world cruelty is explained as including, inter alia, harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 18. So when a person is charged with an offence under Section 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge? 27. 0n careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Sections 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his Gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the Gumti. In this view of the matter, no offence under Sections 376/511 IPC is made out. 28. In this view of the matter, it has become imperative to examine the legal position whether the offence of the appellant falls within the four corners of other provisions incorporated in the Indian Penal Code relating to outraging the modesty of a woman/girl under Sections 366 and 354. 29. Section 366 IPC is set out as under:- 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. 29. Section 366 IPC is set out as under:- 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid. 30. The essential ingredient of the offence punishable under Section 366 IPC is that when a person has forcibly taken a minor girl with the intention as specified in that section, then the offence is clearly made out. In the instant case, the appellant at about 1.30 a.m. has forcibly taken the prosecutor/victim to his Gumti with the intention of committing illicit intercourse then the offence committed by the appellant would fall within the four forecorners of Section 366 IPC. In our considered view, the essential ingredients of the offence punishable under Section 366 IPC are clearly present in this case. We deem it appropriate to briefly reproduce the ratio of some decided cases. 31. In Khalilur Ramman vs. Emperor, AIR 1933 Rang 98, the Full Bench has observed as under:- The intention of the accused is the basis and the gravamen of an offence under Section 366. In considering whether an offence has been committed under this section, the volition, the intention and the conduct of the woman are nihil ad rem except in so far as they bear upon the intent with which the accused kidnapped or abducted her. In considering whether an offence has been committed under this section, the volition, the intention and the conduct of the woman are nihil ad rem except in so far as they bear upon the intent with which the accused kidnapped or abducted her. If the accused kidnapped or abducted the woman with the necessary intent, the offence is complete whether or not the accused succeeded in effecting his purpose, and even if in the event the woman in fact consented to the marriage or the illicit intercourse taking place. 32. This Court in Rajendra vs. State of Maharashtra, (1997) SCC (Cri) 840 observed as under: Where the Courts had given cogent and convincing reasons for recording their finding that the accused had kidnapped the victim girl with intent to seduce her to illicit intercourse, conviction of accused under Section 366 was not interfered with. 33. The High Court of Delhi in Niranjan Singh vs. State (Delhi) (1986)2 Cri 335 indicated that in what circumstances an offence under Section 366 IPC is made out. In this case, the Court, while dealing with a case under Section 366 IPC, observed as under:- Where from the statement of prosecutrix, a girl of six years age it was evident that the accused took her on the pretext of getting her some biscuits to public toilets took off her salwar and also his own pant made her to lie on the floor and bent down on her when he was caught hold by a watchman in the locality, the accused would not be guilty of an attempt to rape however he would be guilty of an offence under Section 366 IPC. 34. In Vishnu vs. State of Maharashtra (1997) Cri LJ 1724 (Bom) the High Court of Bombay observed as under:- The accused were alleged to have kidnapped the girl below 16 years of age from the lawful guardianship of her parents and taken her to another city. The co-accused had simply met the girl and had not instigated her to accompany the accused. Hence, her conviction was set aside. So far accused was concerned, his offence of kidnapping was proved beyond all doubts and he was convicted Under Section 363/366 IPC. The co-accused had simply met the girl and had not instigated her to accompany the accused. Hence, her conviction was set aside. So far accused was concerned, his offence of kidnapping was proved beyond all doubts and he was convicted Under Section 363/366 IPC. Accused was however acquitted of the charge of rape Under Section 375 IPC as hymen of girl was intact and there were no outward sign of injuries or violence suggesting the sexual intercourse and consequently no rape could be said to have taken place. 35. In the instant case, the act of the accused proves that during the kidnapping of the prosecutrix or forcibly taking her to the Gumti, the accused had intention or knew it likely that the prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere case of kidnapping for indecent assault but the purpose for which kidnapping was done by the accused has been proved. It is a different matter that the accused failed at the stage of preparation of committing the offence itself. 36. In view of the foregoing facts and circumstances of the case, we are of the opinion that the crime committed by the accused was at initial stage of preparation. The offence committed does not come within the purview of offence punishable under Sections 376/511 IPC. The offence committed squarely covers the ingredients of Sections 366 and 354 IPC. The appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of the Code of Criminal Procedure the accused charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present. 37. On the basis of evidence and documents on record, in our considered view, the appellant is also guilty under Section 354 IPC because all the ingredients of Section 354 IPC are present in the instant case. 14. In Pandharinath vs. State of Maharashtra, as reported in AIR 2010 SC 1453 , the Apex Court considered the scope and ambit of Section 222 of the Cr. P.C. in the following terms:- 8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. P.C. in the following terms:- 8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra vs. Rajendra Lawanmal Gandhi, (1997)8 SCC 386 ; 1997 AIR SCW 3923 and Tarkeshwar Sahu vs. State of Bihar (2006)8 SCC 560 . 9. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the Cr PC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani vs. State of Karnataka (2001)2 SCC 577 : 2001 AIR SCW 532 had an occasion to deal with Section 222 of the Cr PC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para:- 16. What is meant by a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence. 15. In a nutshell it may be stated that what was decided in Shamnsaheb M. Multtani (supra) by the Apex Court still holds the field and as such unless it is shown that the minor offence is cognate to the major offence, the trial court or the appellate court cannot convict an accused for commission of the minor offence in exercise of the powers as provided under Section 222 of the Cr. P.C. In the instant case, the offence under Section 417 of the IPC, on going by the test as illustrated by the apex Court, is a distinct offence from the offence under Section 376(1) and Section 315 of the IPC and as such the impugned conviction and sentence under Section 417, IPC cannot be sustained. 16. The interpretation as advanced by Mr. A. Ghosh, learned Additional P.P. is absolutely laboured one and this cannot be accepted in view of the law as settled. 'Cheating' as defined under Section 415 of the IPC is sine qua non for constituting an offence under Section 417 of the IPC, whereas the rape as defined in Section 375 of the IPC is sine qua non for constituting an offence under Section 376(1) of the IPC. For holding that the offence under Section 315 of the IPC is entirely different and distinct from Section 417 of the IPC no illustration is perhaps necessary. From a bare reading of the provisions, it would be clearly established that these two offences (under Section 376(1) or 315, IPC and Section 417, IPC) fall under different categories of offences and they are not cognate to each other. 17. Another aspect is also required to be considered whether there was any element for establishing the charge of Section 417 of the IPC. From appreciation of the evidence it comes to the fore that the prosecutrix (P.W.1) was engaged in a love affair with the petitioner and she had cohabited with the petitioner regularly and as a result thereof she became pregnant and when she was pregnant she asked the petitioner to marry her. When the petitioner refused to marry her, she initially took the matter to the village elders and thereafter informed the matter to the police by filing a written complaint, Exbt.-1. The prosecutrix also delivered a child, who died prematurely. The prosecutrix's version got support from some of the witnesses that the petitioner had assured the prosecutrix of marriage. But nowhere the prosecutrix had stated that she gave her consent on such assurance of marriage. As such the cohabitation is an outcome of consent of the prosecutrix, who attained the consenting age at the time of occurrence. The prosecutrix's version got support from some of the witnesses that the petitioner had assured the prosecutrix of marriage. But nowhere the prosecutrix had stated that she gave her consent on such assurance of marriage. As such the cohabitation is an outcome of consent of the prosecutrix, who attained the consenting age at the time of occurrence. Both the Courts below rightly and unwaveringly held that the allegation of rape had not been established and for inadequate evidence the charge as framed under Section 315 of the IPC had also fallen through. For constituting an offence under Section 417 of the IPC cheating as defined in Section 417 of the IPC must be proved. 18. In similar circumstances, this High Court in Jakir Ali vs. State of Assam, as reported in 2007(3) GLT 497, observed as under:- 18. The Apex Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether 'consent' existed or not, the Court has to take into account not only the previous or contemporaneous acts of the accused, but also his subsequent conduct. To put it differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the Court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain 'consent' or was an honestly made promise of marriage, I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, In the absence of anything more, that the promise mode by the accused was never intended to be acted upon by him. It is apparent from the decision of this Court that unless it is shown that prior to indulging in any sexual activities, the promise of marriage, if any, was made and it should be demonstrated by the prosecution that such promise was made with an intention to deceive the prosecutrix from the very beginning. Unless such materials are available, conviction under Section 417 of the IPC cannot be returned or sustained in law. 19. Unless such materials are available, conviction under Section 417 of the IPC cannot be returned or sustained in law. 19. The relevant statement for purpose of determining the said element as referred in Jakir Ali (supra), this Court is required to revisit the statement made by the prosecutrix as the P.W.1. The prosecutrix stated that I had love affairs with him. He induced me that he would marry me. He committed sexual intercourse with me stating that he would marry me. He continuously committed rape on me for a period of 2/3 months and because of that I became pregnant. I reported the matter to the accused. Thereafter, I visited one's house and consumed homemade medicines at his residence. Thereafter my pregnancy was terminated. As bleeding could not be checked he took me to Malaghar hospital for treatment. Dr. M. C. Saha treated me there. I had to stay in the Melaghar hospital for 3/4 days. The accused did not stop visit of our house and he assured me further that he would marry me. He also committed sexual intercourse with me for which I became pregnant for the second time. I asked him to marry me, but he did not pay any heed to my request. Thereafter, a village baithak was held in which it was decided that the accused would marry me. But the accused did not comply with the condition of the said meeting. 20. The P.W.2, Smti. Anjali Barman, wife of the prosecutrix brother, stated categorically that the accused had love affairs with the informant and the informant became pregnant because of regular cohabitation with the accused. As the accused did not agree to marry the informant, she lodged the complaint before the Court against him. I came to know the said fact from Anjali Das (Barman) who is also one of my sisters-in-law. My husband used to reside at Jalaiya which is far away from our house. I intimated the matter to him as soon as he returned to home. I also intimated the matter to my father and mother-in-law. On query I came to know from the informant that she had love affairs with the accused and she had become pregnant because of regular cohabitation with him. Thereafter, we all asked the accused to come to our residence and to discuss about the matter. I also intimated the matter to my father and mother-in-law. On query I came to know from the informant that she had love affairs with the accused and she had become pregnant because of regular cohabitation with him. Thereafter, we all asked the accused to come to our residence and to discuss about the matter. On our query he stated to us that he would marry the informant subsequently. We also intimated the matter to the local people of our village. But the accused declined to obey the decision of the meeting. At that time the informant was pregnant of 7 months. (Name concealed) lodged the complaint when the accused refused to marry her. I accompanied her to the Court. Thereafter, the informant was taken to V.M. and G.B. hospital for medical examination. 21. From the statement of the prosecutrix and the statement of the P.W.2 it would be apparent that both the prosecutrix and the petitioner was engaged in a love affair and they cohabitated regularly and thereafter when the prosecutrix became pregnant once that was aborted and again they started cohabiting resulting in further pregnancy. The prosecutrix gave birth to a baby, who however, died within 21 days. It is apparent that there is no element to show that from the very beginning there was element of deception to have the physical relation with the prosecutrix. The denial to marry only came, according to the P.W.2, when the prosecutrix lodged the complaint. Therefore, it cannot be held that from the very beginning there was element of inducement to deceive the prosecutrix by giving false assurance of marriage and as such the ingredients of Section 415 of the IPC has not been established and thus, the conviction as returned under Section 417 of the IPC is bad in law. 22. For the reasons as aforesaid, the impugned judgment of conviction and order of sentence is hereby set aside and the petitioner is discharged from the charge of Section 417 of the IPC under which he was convicted by the trial court and the appellate court also affirmed. The sureties, if any, are also discharged from their obligation. With the above observations, the revision petition is allowed and disposed of accordingly is discharged from the charge of Section 417 of the IPC under which he was convicted by the trial court and the appellate court also affirmed. The sureties, if any, are also discharged from their obligation. With the above observations, the revision petition is allowed and disposed of accordingly is discharged from the charge of Section 417 of the IPC under which he was convicted by the trial court and the appellate court also affirmed. The sureties, if any, are also discharged from their obligation. With the above observations, the revision petition is allowed and disposed of accordingly. Send down the lower court records forthwith. Petition allowed.