f CF0000061425 Vj Z VI ^7 ..^^-^ .^' IN TS HI&S CO®TO? jgDICAa'URE. AI JABALP® CB. AfiESAL NQ. 'V^ \ OF'1997 Maniran son of Burgaprasad,- Yadav, aged 19 years, resident/ ef I.avan, f Ji SSXJS&iSX^ Kasdol, Mstriet Baipt.a*, MP. vs. IHE SSAIE QF M.P. .. ASffiLLUI (IH JAIL) _BESB3 EHr GRIMIHAI, Aj'PEAL TOB.EB ®Sffi,OZll:^2)QF IBE ^^IN^L leoGESCBE. a3SE. -i-^^A. K A p-^. HIGH COURT^ OF CiffiamSGMtH AT BIIASPURo Crlmlnal ftppeal No.1471/199T Maniram ^>pellant, vs State of Madhya Pradesh (Now Chbattisgarh). «*«• «** JUOGMENT Hon.Sbri R.S.Garg, J. s The appellant being aggrieved by tbe judgment dated 3.7.97. passed in Sessians trial No»437/94. by tbe learned Additioaal ^esaions Judge, Baloda Bazae, convictingthe appellant ander Section 376 (2) (f) ZoP.Co* sentencing hin to undergo R.I. £or 10 yeaes. pay fine of is. in default o£ paynent o£ fine to undergo furtber R.I. for one year and Under Seetioa354 I.P«C« sentenciag bltn to andergo R.I. £or 2 years and pay fine of Rs»l000/-» in defiault o£ payment u£ fine to undergo further R«I. for 6 months. has filed this appealo 2}» Learned counsel £or the appellant submits that the trial Court levelled the charges against the accused £cr offences punishable under Sectioas 376 read with section 511 lop.c. and undei Sectioa 354 I.PoC. During the course of trial and after the evidence was brought,. an record, the --1 trial court did not amend the ebarge nor required tbe appellant to answer a charge ander Sec'ti.on 376 (2)(f) I«P<C*»but in its f.1nal judgment desplte recording tbat Gbarges under section 376/511 I«P.c»were levelled against the appellanti ccnvicted him under seetion 376(2)(f) I.P.C* sbe sufcmits -tbat tbe evidence brougfat on record is eontrary to the original case and without modifying and amending tbe cbarges, the Courb eould not convict the appellant ualer seeticat 376{2){f)I.P«C 3)« Faced witb tfae situation and legal iinpedl- -Bient, leamed eouasel £or the State subraits tbat evea i£t,be accused is not llable to be panished under Sectlon 376(2)(f) I.P.C, be can still be corwicted under Section 376/511 I.P.C. He further sulanits fetaat to provid® prqper defaace to the appellant, it would be in tbe interest of justice to remit the case back to the trial Court with a direetioa to amend the charge and give proper q?portunity to eross-escamine all the witnesses afresb and prove his defence. 4). I bave beard the parties• 5). on 11-3-1995, the Court. below levelled the following charges against tbe accusedt VS •f^ fs^TSw 19/8/94 Tt TTci 28-00 NSr aqqr j(8? qif^g ?rpT flyr y ysftf a??w rq*inif6tii ^i vry gg«R AfTT yi!^ 9T -\ - 3 - ?m-g -f^rr aYr yn^ (rrrr ?g jrerT ^rtTrii'I ®TiPmi ^i^ qg SVOtf 1^TT ui^- (nrr 378 wrftfd (rrrr s 11 WT^T ^°s ^fecrr ^ apcpfa ^s ^ -fn^ sawr ifr ^TFT V t 1 f^fl-q :- TTO f^rfe, i^mr ? wro TT arpft rBiWTBi i^ ^ ifret4^ y^ ^ anr? "^ JB TC 3i'(4<i r^g> m $T yiftw IWr arprer qg ^pf tTHT 554 iTrTifr^ ^S ttefT ^ 3pa4H ?°s ^ q>pTT s'rar Wr ^TST X ? s 6). Froa a perusal o£ oharge order, it would clearly appear tbat the Court was requiring the appellant to answer a charge punishable under Section 376 read wlth section 511 I»P<(C., so also charge under Seetion 354 IaP»C« From -tbe pro- ceediags reeorded by tbe trial Court it does not appear that at aay paAataEBt time durj.ng the course o£ trial or after the seeiised had entered i^- in the defence , it ever aaend4the ctarge* 7). In the qpinlon of this Court, it would not be in accordance witb law to convict an accused for a charge wbicb was never framed against tbe aceused. Provisions relating to framing o£ charge as contained in Code of Criminal Pcocedure clearly say that the Court must require the accused to answer a cbarge £or wtiich he may be beld liable. If the charge was £or an offence under Section 376/511 I.PoC., tben, conviction of the accused for substaatlve offence under Secticn 376_(2)(f) - 4 - Irt- I.P.C* would not only^bad but would be contrary to law. The procedure ad<^>ted by tbe learned Court. below is un-beard o£ and is not known to law. I could understand a case where during the course of trial or after the prosecutioa had le<3 its evidence, tbe court recorded its formal oplait® and proceeded to amend the charge. In the preseat ease, the accused was never Informed toe ttiat be was likely to^convieted fac substantive offence punisbable inidec Sectiea376(2}(£)l.P«C« It is also to be seen tbat in a ease of attempt of ce«anissioa of offence, punishment would be half of the ptinishmeBt which can be awarded to the accused If be had ccHreitted or completed the offence. Tbe Court below has ignored the basic principXes of iaw and erred in convlcting the appellant uirier Seetion 376(2)(£) I.P.C* For tbis short reason, the judgnent delivered by the Court below deserves to and is aecordingly set aside» The matter is remitted to the Court below with a diFectleaa that it stoll now amend ttie cbarge . again recordd-the statenents of the accused aad if tbe accused i»Bts to further cross-examine tbe witnesses in view o£ the amended charges. then. all the wltaesses examined by the prosecution stiall be dlrected to reraain in attendanee for furtber cross-examinat.ion. If the aeeused wants to lead WW< evidence ia his defeace, then.propec opportunity sball be givento blm. On comple-tion oftbe trial in accordance with the^,directions ^ aforesaid^ fee trial Courl. sball re-hear the parties and decide the matter In accordance with law. Tbe appellant shall be produced before the trial court on 27th August,2001. Ttae ease shall be restored to its original number • 8)» &b tbis stgge it 1s necessary te observe tbat the accused a@pears -to be in Jail since after tbe dafce of his conviction i.e. 3.7.97..therefore, if the appellant makes an applicatioa £or tiis release on bail, the trial Court sball decide the applieatloa In accordance witb law taking into consideration the pre-trial detent.lon of the aectised. 9). The appeal to tbe extent indieated above is alloweda The reeords of the coiirt below fce lianediat.ely sent back. C.C« •to tbe parties withia 3 days. R.S. 23-07-2001. .^--p