Decided on May 04,2010



- (1.) A writ complaint dated 31-7-2006 alleging that the Appellant entered the house of the complainant and attempted to rape her minor daughter aged 8 years, led to registration of Singtam Police Station Case No. 26/2006 dated 31-7-2006 under Sections 454/376/511 of Indian Penal Code. In course of investigation the victim girl recorded her statement under Section 164 of the Code to the effect, inter alia, as follows: Tika Maya Chettri lifted me and forced me to lie down on the bed. He then took out my underwear and also put his hand over my mouth so that I could not shout. He then took out his private part and started rubbing it in between my thighs. He did not, however, put it in my private part. After sometime he left me.
(2.) On completion of investigation, a charge-sheet was filed against the Appellant under Section 376 read with Section 511 of IPC, i.e. attempt to rape. Thereupon, charge was framed against the Appellant under Sections 376/511 of IPC. 10 witnesses were produced by the prosecution to prove its case. The accused had no witnesses to examine. After conclusion of the trial, by the judgment and sentence under appeal, the learned Sessions Judge, East and North Sikkim at Gangtok, by invoking the provisions of Section 221 of the Code, held the Appellant guilty of offence under Section 375 of IPC punishable under Section 376 of IPC, i.e. of rape, and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000/- which, if recovered, to be made over to the victim, and in default of payment of fine, to undergo further rigorous imprisonment for one month.
(3.) In the present appeal, amongst others, it is being contended that by taking recourse to Section 221 of the Code, the learned Sessions Judge could not convict the Appellant for the offence of rape, when the charge, as was framed, was attempt to rape. It was submitted by the learned Senior Counsel appearing in support of the appeal that Section 221 of the Code cannot be taken recourse to in isolation. It was contended that Section 221 of the Code is controlled by Section 222 of the Code. In other words, it was submitted that if the charge was for an offence of greater magnitude, punishment for an offence of lesser magnitude can be awarded, but not the vice-versa. It was also contended that the Appellant had not been charged for rape, a distinct and separate charge than an attempt to rape, and as such the Appellant was prevented from organizing his defence to the charge of rape, which in turn resulted in failure of justice.;

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