REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 729 OF 2003  

Pandharinath                                   ..Appellant

Versus

State of Maharashtra ..Respondent

JUDGMENT  

Dr. Mukundakam Sharma, J.

1. This appeal arises out of the judgment and order dated 31.01.2003 passed  

by  the  Nagpur  Bench  of  the  High  Court  of  Bombay,  convicting  the  

appellant herein under the provisions of Section 376 of the Indian Penal  

Code,  1860  (for  short  ‘IPC’).   The  trial  court,  after  convicting  the  

appellant  under  Section  376  IPC  sentenced  him  to  suffer  rigorous  

imprisonment for five years and to pay a fine of Rs. 1,000/- in default to  

suffer further rigorous imprisonment for six months. The said sentence  

was,  however,  altered  by  the  High  Court  by  awarding  a  sentence  to  

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undergo rigorous imprisonment for the period of one year and to pay a  

fine  of  Rs.  1,000/-  and  in  default  to  undergo  further  rigorous  

imprisonment for a period of six months.

2. Facts briefly stated are as under:

Prosecutrix Shobha Bhaurao Ramteke was a working woman and was  

working  in  Battery  Company  at  Vardhman  Nagar.   According  to  the  

allegations made in the First Information Report filed by her, she met the  

accused-appellant at Boudha Vihar situated at Seminary Hills.  At the said  

meeting, the accused-appellant told her that he is in need of maid servant  

and she will be paid Rs. 400/- with meals and residence facility.  Thereafter,  

the accused – appellant invited her to attend the Paritrana Path, which was  

going to be held on 26.08.1992 between 6.00 p.m. to 8.00 p.m.   In terms of  

the aforesaid invitation, the complainant had gone there and at that time one  

Bhane,  sister  of accused Nalini,  son of accused and one another lady by  

name Ramteke were present in the house of accused-appellant.   However,  

the function of Puja was postponed for next day, and therefore, all of them  

were  sleeping  in  the  first  room.   The  accused-appellant  asked  the  

complainant and lady Ramteke to sleep in kitchen room along with their  

children.  Further allegation made out in the FIR is that at about 2.30 - 3.00  

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a.m. the complainant found that somebody is touching her head and hence  

she gave jerk to the hand.  When she again felt that somebody is touching  

her body she got up.  She found that the accused-appellant was sitting near  

her bed whereupon she shouted.  Immediately, the accused-appellant gagged  

her  mouth  and  lifted  the  petticoat  and  removed  the  underwear  of  the  

prosecutrix and committed sexual intercourse.  On hearing her cries, Bhante  

came there and the complainant told the incident to him, upon which Bhante  

got  annoyed  and  gave  a  slap  on  the  face  of  accused-appellant.   In  the  

morning, Bhante and the prosecutrix came to the house of the wife of the  

accused and from there they went to the office of Commissioner of Police.  

The  prosecutrix  narrated  the  incident  to  the  Commissioner  of  Police.  

Thereafter  she  was  sent  along  with  the  police  to  the  Sakkardara  Police  

Station  wherein  her  statement  was  recorded  and  a  criminal  case  was  

registered.  Thereafter, she was sent for medical examination. Subsequently,  

the accused was arrested and he was sent for medical examination.  After  

completion of the investigation, charge sheet was filed against the accused-

appellant under Section 376 of the IPC.  In terms of the aforesaid charge  

sheet, charges were framed against the accused-appellant for committing the  

offence under Sections 376 IPC.  When the charge was explained to the  

accused, he pleaded not guilty and claimed to be tried.   

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3. During the course of the trial, 9 witnesses were examined on behalf of the  

prosecution.  Two defence witnesses, namely, Dr. Avinash Wase (D.W.  

1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial  

court  thereafter  heard  the  counsel  appearing  for  the  parties  and  then  

passed an order of conviction against the appellant holding him guilty of  

the offence under Section 376 IPC and sentenced him to suffer rigorous  

imprisonment for five years and to pay a fine of Rs. 1,000/- and in default  

to suffer rigorous imprisonment for six months.

4. Aggrieved by the said decision of the trial court, an appeal was preferred  

in  the  High Court.  The High Court  by  its  Judgment  and Order  dated  

31.01.2003 held the appellant guilty under Section 511 of the IPC for the  

offence  of  attempt  to  commit  rape  and  sentenced  him  to   rigorous  

imprisonment for one year and to pay a fine of Rs. 1,000/-.

  5. Being aggrieved by the aforesaid judgment and order of conviction and  

sentence, the accused-appellant filed the present appeal in this Court by  

way of special leave.  We heard the learned senior counsel appearing for  

the appellant and have also perused the records available before us.

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6. Mrs. Anagha A. Desai, the learned counsel appearing for the appellant  

vehemently contended, inter alia, that there are serious contradictions in  

the statement of the prosecution witnesses.  It was submitted that there  

were many other witnesses present at the time of commission of offence  

at the place of occurrence who were not examined by the prosecution.  It  

was  contended that  there  is  failure  on the  part  of  prosecution  for  not  

examining even the husband of the prosecutrix. It was further submitted  

that  the  medical  evidence  does  not  support  the  statement  of  the  

prosecutrix  that  there  was  a  rape on her  by  the  accused although the  

doctor examined the prosecutrix on very next day.   

7. In view of the aforesaid submissions, we have examined the records of  

the case.   The trial  court  and the High Court have given a concurrent  

finding that the appellant is guilty.  The trial court was of the view that  

the appellant is liable to convicted under Section 376 IPC.  The High  

Court, however, held the appellant guilty of the offence under Section  

376 IPC read with Section 511 of the IPC. There is no dispute to the  

basic fact that the prosecutrix was a major and not a minor.  Even if we  

accept the contention of the counsel appearing for the appellant that no  

offence under Section 376 is proved in the instant case on the basis of the  

evidence on record, it is definitely a case of commission of the offence of  

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attempting to rape. The prosecutrix has clearly stated in her examination  

in chief that on waking up she found the accused-appellant sitting near  

her  legs  and  the  accused-appellant  removed  her  under  garments  and  

gagged her mouth. Subsequently, the accused-appellant felt sorry for the  

incident and also apologized for the same. There is no suggestion in the  

cross-examination on the part of the accused to the aforesaid statement of  

the  prosecutrix  that  the  accused  did  not  remove  her  cloth.   She  had  

categorically  stated  in  her  examination-in-chief  that  the  accused  had  

removed  her  clothes.   The  accused-appellant  had  also  stated  that  the  

prosecutrix should forgive him for his acts against which no suggestion  

was put to the effect that he did not seek such an apology.  If the accused-

appellant had removed her clothes and he had not rebutted this statement  

of the prosecutrix in his examination-in-chief, it is definitely a case of  

attempt to rape.  

8. It is well settled legal position that if an accused is charged of a major  

offence but is not found guilty thereunder, he can be convicted of minor  

offence, if the facts established indicate that such minor offence has been  

committed. Reference in this regard may be made to the decision of this  

Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997)  

8 SCC 386; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560.

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9. It is true that there was no charge under Section 376 read with Section  

511 IPC.  However, under Section 222 of the CrPC when a person is  

charged for an offence he may be convicted of an attempt to commit such  

offence  although the  attempt  is  not  separately  charged.  This  Court  in  

Shamnsaheb M. Multtani v.  State of Karnataka, (2001) 2 SCC 577  

had an occasion to deal with Section 222 of the CrPC. The Court came to  

the conclusion that when an accused is charged with a major offence and  

if the ingredients of major offence are not proved, the accused can be  

convicted for minor offence, if ingredients of minor offence are available.  

The Court observed as follows in relevant para:  

“16.  What is meant  by ‘a minor offence’ for the purpose of  Section 222 of the Code? Although the said expression is not  defined in the Code it can be discerned from the context that the  test  of  minor  offence  is  not  merely  that  the  prescribed  punishment is less than the major offence. The two illustrations  provided in the section would bring the above point home well.  Only if the two offences are cognate offences, wherein the main  ingredients are common, the one punishable among them with a  lesser sentence can be regarded as minor offence vis-à-vis the  other offence.”

10.So, if it appears to the Court that  Section 376  IPC is not applicable but a  

lesser offence  under 376 read with 511 IPC is made out, the court is not  

prevented  from taking  recourse  to  and  punishing  the  accused  for  the  

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commission of such lesser offence. The attempt to commit rape is lesser  

offence than that of rape, and there is no bar of converting the act of the  

accused from Section 376 to Section 511.

11.In view of the aforesaid discussion, we find no reason to differ with the  

findings arrived at by the High Court.  

12.We find no ground in this appeal, accordingly, it is dismissed.  

............................................J        [Dr. Mukundakam Sharma]

.…………………………..J.                          [Dr. B.S. Chauhan]

New Delhi, July 6, 2009

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