HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 503 of 2003 Decided on: 23.9.2010 Dorje Raftan ………..Appellant Versus State of H.P ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes For the appellant: Mr. Vinay Thakur, Advocate For respondent: Mr. J.S Guleria, Assistant Advocate General V.K. Ahuja, J.: This is an appeal filed by the appellant against the judgment of the Court of Learned Sessions Judge Kinnaur, Sessions Division at Rampur Bushahr dated 24.10.2003 vide which the appellant was held guilty under Section 417 IPC and was sentenced to simple imprisonment for one year and fine of Rs. 10,000/-. In default of payment of fine, the appellant was to undergo further Simple Imprisonment for two months. 2. Briefly stated the facts of the case are that the allegations made as against the appellant were that on 4.11.2001 to 25.11.2001 at village Mane, the accused kidnapped the prosecutrix Miss Sonam Angme from the lawful guardianship and kept her at Shimla, Rampur and other places. It was also alleged that appellant (hereinafter also referred to as an accused)kidnapped and abducted the prosecutrix with the intention that she may be compelled to illicit intercourse. It was also 2 alleged that during this period the accused committed rape upon the prosecutrix without her consent and will. On a report lodged with the police, the case was registered and after investigation,the challan was filed before the court of Chief Judicial Magistrate, Kinnaur at Reckong Peo,who committed the case to the Court of Learned Sessions Judge, Kinnaur who framed the charge as against the appellant under Sections 363, 366 and 376 IPC. On conclusion of the trial, the appellant was acquitted of the charges framed against him under the above sections, but was convicted under Sections 417 IPC applying the provisions of Section 222(2) of Cr.P.C. 3. Being aggrieved by the said judgment, the appellant has come up in appeal to this Court. 4. I have heard the learned counsels for the parties and have gone through the record of the case. 5. The submissions made by learned counsel for the appellant are that the appellant was charged under Sections 363,366 and 376 I.P.C and the ingredients are quite different from Section 417 IPC for which he was never charged and these can not be considered and the provisions of Section 417 IPC can not be considered as a minor offence of the charge framed against the appellant Thus, the appellant has been wrongly convicted and sentenced and the appeal deserves to be allowed accordingly. 6. On appraisal of the facts of the case, it is not in dispute that the appellant was charged under Sections 363,366 and 376 IPC. The ingredients of the charge were that the appellant had kidnapped the 3 prosecutrix with intent that she may be compelled to have sexual intercourse with the appellant and that the act of the rape was also committed punishable under Section 376 IPC. The provisions of Section 417 IPC reads as under: Punishable for cheating- Whoever ever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Offence of cheating has been defined under Section 415 IPC which reads as under: Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 7. It is therefore, clear that the ingredients of the offence under Section 363,366 and 376 IPC were quite different since the charge was of kidnapping and rape which was quite different from the allegations 4 that can be made of cheating. In case, the appellant had been held guilty under Section 376 IPC he can be convicted under Section 376 read with Section 511 IPC i.e for attempt to rape if the facts so prove. He can also be held guilty and convicted under Section 354 IPC which can be said to be minor offences of the allegations made for the offence punishable under Section 376 IPC. No charge under Section 417 IPC was framed in the alternative and there were no allegation as against the appellant that he had cheated the prosecutrix and as such was liable for the offence under Section 417 IPC . The ingredients of both the offences are quite different and applying the provisions of Section 222 Cr.P.C, it can not be said that the offence under Section 417 IPC is minor offence of the one under Section 376 IPC, simply for the reason that the punishment prescribed under Section 417 IPC was for a term which may extend to one year and with fine or with both, but the conviction and sentence under Section 376 IPC which was punishable for a period of 10 years or 7 years as the case may be. 8. Section 222 Cr.P.C provides that a person can be convicted of a minor offence if 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. By no stretch of imagination, it can be said that provisions of Section 411 IPC apply and it is minor offence of the charge framed against the appellant. The learned Trial Court has committed an illegality in convicting the 5 appellant under Section 417 IPC for which he was never charged and the facts constituting the offence under Section 417 IPC were never alleged or proved as against him. 9. In view of the above, I accordingly hold that conviction imposed upon the appellant and the sentence so imposed is accordingly not sustainable and correct. The appeal is accordingly allowed and the sentence imposed upon the appellant is accordingly set aside. The fine if realized, shall be refunded by the appellate court after three months . Bail bonds furnished by the appellant stand discharged accordingly. September 23, 2010. (V.K. Ahuja), ( veena ) Judge.,