Daulal vs State of M.P. (Now C.G.)

Rajeshwar Lal Jhanwar, J.—This appeal is directed against the judgment of conviction and order of sentence dated 29.09.1994 delivered in Sessions Case No. 274/1993 by the 3rd Additional Sessions Judge, Raipur whereby the Appellant was convicted u/s 456 and 376 read with Section 511 of the I.P.C. and sentenced to rigorous imprisonment for one year u/s 456 and to rigorous imprisonment for five years u/s 376/511 of the I.P.C. respectively with a direction to run both the sentences concurrently.

Prosecution story in brief is that on 07.03.1993 at about in the night the prosecutrix Ku. Sarojini Bai P. W.5 accompanied with her nephew, aged two years was sleeping inside her room. Mother of the prosecutrix was sleeping in Purchi and her brother and his wife were sleeping in another room. The Appellant came from back door, entered inside her room and lifted the petticoat of the prosecutrix and thereafter attempted to commit rape on her. The prosecutrix upon feeling pain awoke and started shouting. After hearing her outcry, mother, brother and his wife came to her and on this the Appellant fled from the spot. The prosecutrix narrated the story to her mother, brother and his wife. They immediately went to the police station, Amanaka, Raipur and F.I.R. was lodged; vide Ex. P.5. Investigation took place. The prosecutrix and the Appellant have been examined by Medical Officers. Statement of witnesses u/s 161 of the Code of Criminal Procedure was recorded. Necessary seizures of clothes have been made. Prosecutrix vaginal slides and her under garments got examined by the Forensic Science Laboratory. Semen and human spermatozoa have been found on her under garments and vaginal slides. After completion of investigation, charge sheet has been filed in the Court of Additional Chief Judicial Magistrate.

The Additional Chief Judicial Magistrate, Raipur, in due course, committed the case to the Court of Sessions Judge, Raipur. The learned Sessions Judge made over the case to the learned 3rd Additional Sessions Judge for trial.

The learned 3rd Additional Sessions Judge had framed charge u/s 376 and 456 of the I.P.C. against the accused Appellant, read over and explained to the Appellant who abjured the guilt and pleaded that he had been falsely implicated in the case.

The learned 3 Additional Sessions Judge after, evaluating the evidence available on record and after hearing the counsel for both the parties, acquitted the Appellant from the charge u/s 376 of the I.P.C. However, the learned trial Court found the Appellant guilty of offence u/s 376 read with Section 511 and 456 of the I.P.C. and accordingly convicted and sentenced Appellant as stated above.

I have heard learned Counsel for the both the parties and perused the record of lower Court.

Ku. Sarojini Bai P.W. 5 in her statement has clearly stated that she was sleeping along with her nephew inside her room in a cot. The Appellant at about 10-11 p.m. at night entered inside her room and after lifting the petticoat of the prosecutrix attempted to penetrate his penis inside her vagina. The Appellant also attempted to close her mouth whereupon she resisted and started shouting because of which the Appellant could not be succeeded. Hearing her outcry, her mother came inside her room and on this Appellant fled from the spot. One of her bangles has been broken since the Appellant caught her hands forcibly. She narrated the whole story to her mother and brother and his wife. They immediately lodged a report in the Police Station, Amanaka vide Ex. P.5. Her statement was duly corroborated by her mother Dhania Bai P.W. 6 who clearly has deposed that in the night when hearing outcry of the prosecutrix she came inside the room of the prosecutrix and saw the Appellant fleeing away from the spot. The prosecutrix, on being asked, narrated the whole story to her. Thereafter, they promptly lodged a report in Police Station, Amanaka, Raipur. Both thess witnesses have been cross-examined by the Appellant but in their cross-examination nothing has been brought about to discredit their version.

The learned trial Court, relying on statements of the prosecutrix and her mother and also considering other material facts held the Appellant guilty of committing lurking house trespass in the night of Holi and attempting to commit rape on the prosecutrix.

Learned Counsel for the Appellant contended that the So far as the prosecutrix is a consenting party and therefore offence of rape or attempting to commit rape are not made out. It is not in dispute that when the offence took place, the prosecutrix was not below 16 years of age. So far as the evidence of the prosecutrix is concerned, it is clear that the prosecutrix was not only resisting the Appellant but also raised alarm to save herself, therefore, the Appellant could not be succeeded in ravishing her and was compelling to flee from there. Even there is iota of evidence to show that bangles of the prosecutrix were broken which clearly suggests that the Appellant has used force on the prosecutrix against her will.

Having considered thus, I am of the view that the contentions raised as above have no force.

The next argument of the learned Counsel for the Appellant is that there was no framing of charge u/s 376/511 of the I.P.C. against the Appellant in the charge sheet. The lower Court has wrongly convicted the Appellant under the above provision, therefore, the conviction of the Appellant by the trial Court is bad in law.

The prosecution opposed the above contention and argued that in accordance with Section 222 of the Code of Criminal Procedure when charge u/s 376 of the I.P.C. has been framed, the Appellant can be convicted for attempting to commit rape in the absence of specific charge. Section 222 of the Code of Criminal Procedure reads as under:

Section 222(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.

It is clear that when a person is charged for an offence he may be convicted of an attempt to commit to such an offence although the attempt is not separately charged. In the present case, though the Appellant was charged u/s 376 of the I.P.C, the trial Court in accordance with above provision and after appreciating evidence available on record has rightly convicted the Appellant for the offence punishable u/s 376/511 of the I.P.C. To substantiate this, the Apex Court in the matter of State of Maharashtra v. Rajendra Jawanmal Gandhi AIR 1997 SC 3986, has held that when evidence on record showing that though actually rape was not committed by the accused but attempted to commit rape, the accused can be convicted u/s 376 read with Section 511 of the I.P.C. though attempt to commit rape was not separately charged.

No other argument has been advanced by the learned Counsel for the Appellant.

From the above discussions and evidence available on record, I am of the considered view that the learned trial Court did not commit any error in recording conviction against the Appellant for commission of offence punishable u/s 456 and 376/511 of the I.P.C. The case law cited on Anand Devsharan v. State of M.P. 1987 (1) MPWN (5) Baldeo v. State of M.P. 1999 (Vol. 1-2) MPWN (182), Bibishan v. State of Maharashtra 2007 SAR (Criminal) 866 (SC) and Somji v. State of M.P. 1984 MPWN (238), by the learned Counsel for the Appellant is distinguishable and does not help the Appellant.

In the result, the appeal is dismissed. Conviction of the Appellant u/s 456 and 376/511 of the I.P.C. and the sentence awarded there under are maintained.