Person Charged U/S 376 IPC For Rape Can Be Convicted U/S 354 Even In Absence Of A Specific Charge : Kerala High Court

Kerala High Court has reaffirmed that a person charged for rape under section 370 of IPC can be lawfully convicted under section 354 of IPC for assaulting a woman with the intent to outrage her modesty, even in the absence of specific charge to that effect, if the evidence proves the lesser offence.

Justice M B Snehalatha thus dismissed the revision petition preferred by the accused challenging his conviction under section 354 of IPC, after being acquitted of the more serious charge of section 376.

The accused argued that since he was not specifically charged under section 354 IPC, the conviction was legally unsustainable. It was contended that since the trial court found him not guilty of the offence under section 376 IPC and acquitted him of the said charge, he cannot be convicted for the offence under section 354 IPC based on the same evidence. The Counsel for the accused contended that “Section 354 is not a minor offence of Section 376 IPC and therefore, the conviction and sentence against the accused is illegal”. They also submitted that there was a delay in filing the FIR.

The Public Prosecutor submitted that the evidence on record and the materials placed by the prosecution established the ingredients of offence under section 354 IPC and therefore invoking provisions under section 222 of CrPC, Court was competent to convict the accused.

The High Court noted that prompt lodging of FIR inspires confidence. By relying on apex court decisions on State of Himachal Pradesh v Prem Singh (2009) and Karnel Singh v State of MP (1995) the court observed “The delay in lodging the FIR in a case of sexual assault cannot be equated with the case involving other offence…The delay in lodging the FIR in sexual offenses against girls and women has to be considered with a different yardstick.”

The court held that under section 222 CrPC, a conviction for a minor offence is permissible even if no specific charge is framed so long as the offence is included within the major charges and the evidence supports it. Referring to various precedents including Tarkeshwar v State of Bihar (2006) and Shamnsaheb M Multtani v State of Karnataka (2001), the Court noted that the trial and appellate court rightly applied this principle.

The court noted that the prosecution has succeeded in establishing all the ingredients of the offence under section 354 IPC against the accused. Therefore, the trial court and the appellate court were right in convicting the accused for the offence under section 354 IPC.

Thus, the revision petition was dismissed.

Case Title - Chandran v State of Kerala

Case No - Crl. RP 832/2018

Counsel for Appellant - Mansoor B H

Respondent - Sanal P Raj - Public Prosecutor

Click Here To Read/Download Order