The judgment emphasizes the requirement for sufficient evidence to prove a charge and the necessity for a specific charge under the relevant section of the Indian Penal Code.

Indu Prabha Singh, J.

1. This appeal under Sec. 374(2) of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the judgment dated 25-11-1992 passed by Shri H. B. P. Sinha, 4th Additional Sessions Judge, Nawadah in S. T. No. 1/ 92/3/92 convicting the appellant under Sec. 376/109 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for six years.

2. The prosecution case, in short, is that on 12-5-1991 while the informant Manti Devi (P. W. 8) had gone to Dhanma Bandh to graze her cattle, at about noon the appellant Anuj Singh came there along with others and charged her that her cow had grazed his Brinjal crops on the previous day. On her denial the appellant caught hold of her hand and brought her near the Brinjal field. He also took her to a hut where he threw her on the ground. One of the accused, namely, Jagdeo Tanti caught hold of her legs while the other accused, namely, Ishwari Singh committed rape on her. On Hulla P. Ws. 3 and 4 came there and the accused fled away. P. W. 8 narrated the incident to her mother. The Fardbeyan of P. W. 8 was recorded. The police after investigation submitted charge sheet. The cognizance of the offence was taken and the case was committed to the Court of Session where the appellant was convicted in the manner indicated above. The other two accused, namely, Jagdeo Tanti and Ishwari Singh were acquitted of the charge under Sec. 376 of the Indian Penal Code since the prosecution failed to prove this charge against them beyond all reasonable doubts. So far as the present appellant is concerned, the learned Court below convicted him under Section 376/109 of the Indian Penal Code since it found that he had abetted the commission of the offence of rape.

3. The appellant has totally denied the alleged occurrence and has contended that the factum of rape does not find support from the evidence of the prosecution witnesses. The doctor (PW 2) who examined the prosecutrix did not find any sign of rape on her. No injury was found on any part of the body of P. W. 8. Also no spermatozoa was found in her private parts though she was examined on the same day on which the alleged rape is said to have taken place. It has been submitted that she being 22 years old she would have certainly resisted any at: tempt to rape and in the process must have sustained certain injuries on her person. P. W. 2 did not find any mark of injury on her person. The trial Court has convicted the appellant only on the charge of abetment and there was no allegation against him that he also committed rape on the prosecutrix. On these grounds it has been submitted that the judgment of conviction of the learned Court below be set aside and the appellant be acquitted.

4. The parties have been heard at length with respect to various submissions made by them. So far as the appellant is concerned my attention has been drawn to the evidence of P. W. 8 who has clearly stated that it was accused Tatma (Tanti) who had caught hold of her legs and accused Jagdeo Singh committed rape on her. From her evidence it is clear that she has not alleged rape against the present appellant. She has also stated that she does not identify the accused Jagdeo Singh. She has further stated that she did not know the name of this appellant even when she identified him as one of the accused of the case.

5. It may be mentioned here that all the three accused persons of this case including the present appellant were charged under Sec. 376 of the Indian Penal Code. No charge under Sec. 109 of the Indian Penal Code was framed against any of them including the present appellant. It has been submitted that since the other two accused who are alleged to have committed the offence under Section 376 of the Indian Penal Code have since been acquitted of the charge under Sec. 109 of the Indian Penal Code against the present appellant cannot be sustained in accordance with law.

6. Paragraph 16 of the judgment of the learn