Indian Kanoon - Search engine for Indian Law

(i) that on facts, offence Under Section 366 read with 511, Indian Penal Code is not at all made out nor can it be legally conceived of. The charge as framed by the trial Court in this behalf, was vague, causing prejudce to the accused in their defence. Similarly, the charge Under Section 354, Indian Penal Code was not proved against the appellant Ida, there could be no conviction Under Section 366 read with 511, Indian Penal Code recorded under the law and lastly;

(ii) The investigation in the case was tainted; examination of the accused Under Section 313, Criminal Procedure Code was equally perfunctory.

8. Before dealing with conviction Under Section 366 read with 511, Indian Penal Code other convictions Under Sections 354 and 323, Indian Penal Code are taken for consideration first. Taking up conviction Under Section 354, Indian Penal Code, as recorded against Appellant Ida, by the trial Court, learned counsel pointed out from the impugned judgment that the basic requirement of offence is not made out by the prosecution. In order to make out a case Under Section 354, Indian Penal Code, it is incumbent on the prosecution to prove that an assault was made or criminal force was used against any woman and secondly, to prove that it was with intention to outrage or knowing that it was likely that he will thereby outrage her modesty.

11. A very significant fact which requires to be noted on the very outset is the charge as framed against the appellants. There is no charge Under Section 34, Indian Penal Code nor is there any charge Under Section 149, Indian Penal Code. There is no allegation that the accused appellants other than Ida either abetted or helped the appellant Ida in commission of the offence. The trial Court has recorded a finding that the prosecutrix Alma at the time of the incident was major; she has been found to be above 18 years of age. Prosecution has not proved that she was below 18 years on the date of incident. Keeping in view this finding and the essential ingredients of abduction, there is absolutely no allegation so far as appellants other than Ida are concerned; much less any reliable evidence to attract Section 366, Indian Penal Code and hold them guilty thereunder. Their conviction Under Section 366 read with 511, Indian Penal Code is not at all maintainable either on facts or on law in absence of a specific charge either Under Section 34, 149 or 114, Indian Penal Code. The evidence as noted above does not go to show that any of them entertained any such intent and indulge in any such act which would go to constitute an offence punishable Under Section 366, Indian Penal Code. Their conviction, therefore, is liable to be set aside; it is accordingly set aside. The case of Ida alone remains to be considered; so far as his conviction Under Section 366 read with 511, Indian Penal Code is concerned.

20. Apart from the fact that on the basis of evidence on record, the conviction Under Sections 366/511, Indian Penal Code cannot be maintained. The trial Court has, even in the matter of sentence, overlooked the Rule quoted above. The evidence of the prosecutrix is full of infirmities; the names of the accused Appellants as they appear in the F.I.R., were admittedly introduced at the behest of the Village Patel. No test identification parade was held during investigation. Conviction Under Section 366/511, Indian Penal Code as recorded by the Trial Court, cannot be maintained. It is liable to be set aside and is accordingly set aside.