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| HC upheld conviction in rape with minor | | | Early Times Report
JAMMU, Apr 21: Justice Sanjay Dhar of Jammu & Kashmir and Ladakh High Court upheld the conviction awarded to one Dinesh Kumar by Principal Sessions Judge Leh in a case of rape with minor.
According to the prosecution case that on 23.06.2017, Lamberdar of Village Nimo telephonically informed the Police that a labourer (appellant herein) has attempted to commit rape upon a minor girl (Miss X). On receiving this information, FIR No. 44/2023 for offences under section 376 and 511 RPC came to be registered by the Police and investigation of the case was set into motion. During the course of investigation, the victim girl was subjected to medical examination, which revealed that she had been subjected to sexual assault. Her clothes were seized and the appellant was arrested. The statements of witnesses were recorded and the appellant was subjected to medical examination. It was found after investigation of the case that the victim girl was enticed by the appellant to go with him whereafter, she took her to a deserted place where he tried to commit rape upon her, as a result of which, the victim girl received injuries. Thus, offences under section 376, 511 and 323 RPC were found established against the appellant and the challan was laid before the trial court.
The appellant has challenged judgment dated 01.08.2019 passed by the Principal Sessions Judge, Leh Ladakh (hereinafter to be referred as the trial court), whereby the appellant has been convicted for offences under section 376 RPC and 323 RPC. Challenge has also been thrown to the order of sentence passed on the same day, whereby the appellant has been sentenced to undergo rigorous imprisonment for a period of eight years and a fine of Rs. 5,000/- for having committed offence under section 376 RPC and to imprisonment for a period of three months and a fine of Rs. 1000/- for having committed offence under section 323 RPC. In default of payment of fine, the appellant has been directed to undergo further imprisonment of three months in respect of offence under section 376 RPC and for one month in proof of offence under section 323 RPC.
Justice Sanjay Dhar after hearing Adv Deepika Mahajan with Adv Atharv Mahajan for the appellant whereas DSGI Vishal Sharma with CGSC Eishan Dadhichi for the UT of Ladakh, observed that it is clear that when there is an error in framing of charge, the Court has to see whether any prejudice has been caused to the accused/convict due to the error or irregularity in framing of a charge. In adjudging the question of prejudice on account of error in framing of charge or omission in framing of a charge, it has to be seen whether the same has led to prejudice or substantial likelihood of it to the accused and whether objection to this effect has been raised by the convict at any stage of the trial. Adverting to the facts to the present case, there is no doubt to the fact that the particulars of the charge mentioned in the memo of charge against the appellant disclose ingredients of offence of attempt of rape and not the offence of rape but the learned trial court has clearly mentioned that the appellant has been charged for offence under section 376 RPC. Therefore, it was clear to the appellant that he was being tried for offence under section 376 RPC, even though the learned trial court has committed error in giving details of the particulars of the charge in the memo of charge. The record of the trial court shows that the appellant has at no stage of the trial raised any objection in this regard and has not projected this ground even in the appeal before this Court. It was only during the course of arguments that the issue was agitated by the learned counsel for the appellant. The record clearly shows that the appellant was all along aware of the fact that he was being tried for offence of rape and not for offence of attempt to rape, as such, it cannot be stated that the appellant was subjected to any prejudice while making his defence to the charge for which he was being tried. The contention of the learned counsel for the appellant in this regard, at this belated stage, cannot be accepted. For what has been discussed hereinbefore, I do not find any ground to interfere in the judgment rendered by the learned trial court. The instant appeal lacks merit and is dismissed accordingly. The appellant, who is in jail, shall serve the balance period of sentence. JNF |
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