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2009 Supreme(SC) 1168

2009(5) Supreme 442
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.
Pandharinath — Appellant
versus
State of Maharashtra — Respondent
Criminal Appeal No. 729 of 2003
Decided on : 06-07-2009

Advocates appeared:
For the Appellant :Mrs. Anagha A. Desai, Satyajit A. Desai, Venkateswara Rao Anumolu, Advocates.
For the Respondent:Ravindra Keshavrao Adsure, Advocate.

IMPORTANT POINT
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.

Headnote:Indian Penal Code, 1860 – Section 376 – Prosecution of appellant for committing rape on prosecuterix – Conviction by Trial Court – Appeal – High Court by its Judgment and Order held the appellant guilty under Section 511 of the IPC for offence of attempt to commit rape –Appeal – 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 – The prosecutrix had clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused – appellant removed her under garments and gagged her mouth – Subsequently, accused – appellant felt sorry for incident and also apologized for the same – No suggestion in cross – examination on part of accused to said statement of prosecutrix that accused did not remove her cloth – The accused-appellant had also stated that prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology – If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it was definitely a case of attempt to rape – It is true that there was no charge under Section 376 read with Section 511 IPC – However, under Section 222 of the CrPC 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 – The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of accused from Section 376 to Section 511 – Hence no reason to differ with findings arrived at by the High Court – Appeal dismissed. (Paras 7 to 12)
       Facts of the Case :
        1. Appellant was convicted herein in the instant case for committing rape on prosecuterix. Trial Court convicted appellant for said offence. On Appeal, High Court by its Judgment and Order held the appellant guilty under Section 511 of the IPC for offence of attempt to commit rape.
        2. Present appeal has been filed against said order of High Court.
       Findings of the Court :
        It is true that there was no charge under Section 376 read with Section 511 IPC.However, under Section 222 of the CrPC 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.The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of accused from Section 376 to Section 511. The prosecutrix had clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, accused-appellant felt sorry for incident and also apologized for the same. No suggestion in cross-examination on part of accused to said statement of prosecutrix that accused did not remove her cloth. The accused-appellant had also stated that prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology.If the accused- appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it was definitely a case of attempt to rape. Hence held that there was no reason to differ with findings arrived at by the High Court. Appeal was dismissed.
       Result : Appeal dismissed.

JUDGMENT

Dr. Mukundakam Sharma, J.—

1. This appeal arises out of the judgment and order dated 31.01.2003 passed by the Nagpur Bench of the High Court of Bombay, convicting the appellant herein under the provisions of Section 376 of the Indian Penal Code, 1860 (for short ‘IPC’). The trial court, after convicting the appellant under Section 376 IPC sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for six months. The said sentence was, however, altered by the High Court by awarding a sentence to undergo rigorous imprisonment for the period of one year and to pay a fine of Rs. 1,000/- and in default to undergo further rigorous imprisonment for a period of six months.

2. Facts briefly stated are as under:

Prosecutrix Shobha Bhaurao Ramteke was a working woman and was working in Battery Company at Vardhman Nagar. According to the allegations made in the First Information Report filed by her, she met the accused-appellant at Boudha Vihar situated at Seminary Hills. At the said meeting, the accused-appellant told her that he is in need of maid servant and she will be paid Rs. 400/- with meals and residence facility. Thereafter, the accused - appellant invited her to attend the Paritrana Path, which was going to be held on 26.08.1992 between 6.00 p.m. to 8.00 p.m. In terms of the aforesaid invitation, the complainant had gone there and at that time one Bhane, sister of accused Nalini, son of accused and one another lady by name Ramteke were present in the house of accused-appellant. However, the function of Puja was postponed for next day, and therefore, all of them were sleeping in the first room. The accused-appellant asked the complainant and lady Ramteke to sleep in kitchen room along with their children. Further allegation made out in the FIR is that at about 2.30 - 3.00 a.m. the complainant found that somebody is touching her head and hence she gave jerk to the hand. When she again felt that somebody is touching her body she got up. She found that the accused-appellant was sitting near her bed whereupon she shouted. Immediately, the accused-appellant gagged her mouth and lifted the petticoat and removed the underwear of the prosecutrix and committed sexual intercourse. On hearing her cries, Bhante came there and the complainant told the incident to him, upon which Bhante got annoyed and gave a slap on the face of accused-appellant. In the morning, Bhante and the prosecutrix came to the house of the wife of the accused and from there they went to the office of Commissioner of Police. The prosecutrix narrated the incident to the Commissioner of Police. Thereafter she was sent along with the police to the Sakkardara Police Station wherein her statement was recorded and a criminal case was registered. Thereafter, she was sent for medical examination. Subsequently, the accused was arrested and he was sent for medical examination. After completion of the investigation, charge sheet was filed against the accused-appellant under Section 376 of the IPC. In terms of the aforesaid charge sheet, charges were framed against the accused-appellant for committing the offence under Sections 376 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.

3. During the course of the trial, 9 witnesses were examined on behalf of the prosecution. Two defence witnesses, namely, Dr. Avinash Wase (D.W. 1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial court thereafter heard the counsel appearing for the parties and then passed an order of conviction against the appellant holding him guilty of the offence under Section 376 IPC and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months.

4. Aggrieved by the said decision of the trial court, an appeal was preferred in the High Court. The High Court by its J

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Judicial Analysis

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2009 Supreme(SC) 1168

2009(5) Supreme 442SUPREME COURT OF INDIADr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.Pandharinath — AppellantversusState of Maharashtra — RespondentCriminal Appeal No. 729 of 2003Decided on : 06-07-2009

IMPORTANT POINT 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.

Cases Referred (3)

Judicial Analysis

2009(5) Supreme 442
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Dr. B.S. Chauhan, JJ.
Pandharinath — Appellant
versus
State of Maharashtra — Respondent
Criminal Appeal No. 729 of 2003
Decided on : 06-07-2009

IMPORTANT POINT
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.