Point of Law: When a charge for a major offence is not made out, conviction for a minor cognate offence, even in absence of a charge, can be sustained.

JUDGMENT :

The instant appeal under Section 374(2), Code of Criminal Procedure, 1973 [‘the CrPC’ and/or ‘the Code’, for short] is directed against the judgment and order dated 29.12.2010 passed by the learned Additional Sessions Judge [FTC], Bongaigaon [‘the trial court’, for short] in Sessions Case no. 14(M)/2009 [State of Assam vs. Md. Khairul Islam]. By the said judgment and order dated 29.12.2010, the accused-appellant had been convicted under Section 417, Indian Penal Code [IPC] and he had been sentenced to undergo simple imprisonment for 1 year and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for further 3 months.

2. The case of the prosecution, in brief, is that on 24.03.2007, a First Information Report [FIR] was lodged before the In-Charge, Gerukabari Police Post by the complainant. In the said FIR, it was, inter-alia, alleged that she had a love affair with the accused-appellant for last about 6 months. At around 0700 p.m. on 22.03.2007, the accused-appellant by making a promise to marry her, took her to his house from her mother’s house and thereafter, committed rape upon her in his room against her will. When the mother of the complainant came to know about the complainant’s absence in the house, she along with her brother and some neighbours made a search for her. In the course of such search, they arrived at the courtyard of the accused-appellant’s house. The accused-appellant hearing about the sound of people approaching, ran away from the house. The parents of the accused-appellant were questioned with regard to the incident by those persons. After such enquiry, they left the place leaving the complainant in the house of the accused-appellant. The complainant alleged that after a while, the parents of the accused-appellant abused her with filthy language and drove her out of the house. She then raised alarm and hearing her alarm, nearby people gathered at the place and took her to the police station.

3. On receipt of the said FIR, the In-Charge, Gerukabari Police Post registered Gerukabari Police Post General Diary Entry no. 369 dated 24.03.2007 and by forwarding the FIR to the Officer In-Charge, Manikpur Police Station for registering a case under Section 376, IPC, he took up the investigation of the case. On receipt of the FIR, the Officer In-Charge, Manikpur Police Station registered a case being Manikpur Police Station Case no. 31/2007 [G.R. Case no. 83/2007] against the accused-appellant under Section 376, IPC on 25.03.2007.

4. The investigating officer [I.O.] of the case, upon completion of investigation, submitted a charge sheet being Charge Sheet no. 25/2007 dated 30.05.2007 under Section 173, CrPC finding a prima-facie case under Section 376, CrPC against the accused-appellant. On submission of the charge sheet, the learned Judicial Magistrate, 1st Class, Bijni, upon appearance of the accused-appellant, furnished copies to him as per the provisions of Section 207, CrPC and as the offence under Section 376, IPC is exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Bijni committed the case record of G.R. Case no. 83/2007, arising out of Manikpur Police Station Case no. 31/2007, by order dated 03.03.2009 and by taking the accused-appellant into custody after rejecting his bail prayer, to the Court of Sessions. On receipt of the case record of G.R. Case no. 83/2007, the Court of Sessions registered the same as Sessions Case no. 14(M)/2009 and transferred the case to the Court of learned Additional Sessions Judge [F.T.C.], Bongaigaon [‘the trial court’] for disposal.

5. After causing production of the accused-appellant from custody, the learned the trial court after hearing the learned Public Prosecutor and the learned defence counsel and after perusal of the materials on record, framed charges under Section 376, IPC and under Section 493, IPC against the accused-appellant. The charges were then read over and explained to the ac