2016 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

The appellants have assailed the judgment dated 28.09.2010 passed by the Additional Sessions Judge, Umerkot in S.C. No.113/2009 whereby the appellants have been convicted under section 354-A, P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000/- each in default whereof to suffer S.I. for three years.

2. Succinctly, facts giving rise to this appeal are that complainant Madan lodged report that on 20.10.2009, complainant, his brother Harain and relative Mohan Lal were available at his shop, where his daughter Lata aged about 09 years came and after purchasing some things, left for her house. At about 5.00 pm complainant heard cries of his daughter baby Lata from near Otaque of Dvevji Mal to which the complainant along with above P.Ws rushed there and saw that baby Lata was forcibly taken away by accused Heman and Santosh Menghwar. Complainant and P.Ws made Hakals to the accused, they after leaving her ran away. Baby Lata disclosed that when she was taking things towards her house, accused Heman and Santosh abducted her with intention to commit rape, she raised cries which attracted the complainant party, meanwhile accused fled away. The complainant moved such applications to higher authorities and then registered FIR.

3. After usual investigation, appellants were sent up to face the charge.

4. Formal charge was framed by the trial court to which the appellants pleaded not guilty and claimed for trial.

5. To substantiate its case, prosecution examined P.W.1 Complainant Madan, who produced FIR, P.W.2 baby Lata, P.W.3 Chandan, who produced mashirnama of place of incident, mashirnama of arrest, P.W.4 ASI Muhammad Shakir, P.W.5 ASI Dur Muhammad and closed its side.

6. Statement of the Appellants under section 342, Cr.P.C. were recorded wherein they denied the prosecution allegations and claimed their innocence. Neither they examined themselves on oath nor led any evidence in their defence.

7. After hearing the learned counsel for the parties, trial court passed the impugned Judgment as stated above.

8. Learned counsel for the appellant contends that appellants are innocent and have been falsely implicated in the case; there is contradictions in the evidence of the complainant, victim and the P.Ws, which has made the prosecution as doubtful; appellants were charged under sections 364-A, 511, P.P.C. but the trial court has convicted the appellants under section 354-A, P.P.C.; that neither case under section 354-A, P.P.C. was alleged nor proved by the prosecution as the ingredients of such section are missing in the present case, therefore, impugned Judgment is liable to be set-aside and the appellants are entitled for acquittal.

9. I have carefully gone through the entire evidence and considered the submissions made at the bar before me in light of the same.

10. The perusal of the record shows that the charge in the instant case was framed against the appellants/convicts for having committed the offence punishable under sections 364-A, 511 and 34, P.P.C. It is also a matter of record that the learned trial court judge did not find the offence of section 364-A or even a failed attempt (511, P.P.C.) to be proved against the appellants/convicts, however, he found the appellants guilty for committing offence under section 354-A, P.P.C. though no such charge was framed against the appellants/convicts. The Court is competent to convict for a distinct offence within meaning of section 237 of the Cr.P.C. but such should be controlled by section 236 of the Code However, without going deep into this aspect, I would confine myself to the legally established principle of law that one cannot be convicted for an offence if the ingredients, necessary to constitute such offence, are lacking.

11. To bring an act of 'assault or criminal force to woman within meaning of section 354-A, of the Penal Code it is necessary that two ingredients must coexist i.e stripping of the clothes of the woman and secondly she, in that condition, be exposed in the public view'. In the instant case there may be allegation of removing shalwar of victim but it was never claim or allegation that she, in that condition, was exposed to public view. Thus, the offence within meaning of section 354 A, P.P.C. was never made out.

12. The learned APG, when confronted with such legal position of the record, acknowledged that ingredients, so required to make out an offence under section 354-A, P.P.C., are lacking. I can safely add here that where required ingredients to make out an offence are lacking the conviction for such offence cannot, legally, sustain. Thus, conviction under section 354 A, P.P.C., so awarded by learned trial court, cannot be endorsed. However, an assault upon the victim outraging her modesty appears to be attracting which falls within meaning of section 354, P.P.C. Accordingly, by short order the conviction was maintained but conviction awarded under section 354-A, P.P.C. was set aside and modified to the extent of two years for committing offence under section 354, P.P.C. The section 354, P.P.C. provides a maximum punishment of two years which the appellants/convicts have served out; therefore, the appellants/convicts were hereby directed to be released forthwith if no more required in any other case crime. Thus, these are the detailed reason.

13. The Cr. Appeal stands disposed of in the above terms along with listed application. RR/H-3/Sindh Order accordingly.