(1.) AN interesting point of law has arisen in this Criminal Appeal filed by the State and we shall briefly indicate as to how precisely the issue has fallen for determination. The Respondent -accused before us was originally charged with having committed an offence punishable under Section 376 Indian Penal Code in S.C. No. 22 of 1988, the allegation being that on 17.9.1987 at about 5.30 p.m. he is alleged to have been involved in a sexual assault on a minor girl by the name of Lakshmidevamma. That case ended in a conviction for the offence punishable under Section 354 Indian Penal Code. The accused, as indicated by us earlier, was originally charged with having committed an offence punishable under Section 376 Indian Penal Code but the findings recorded by the trial Court are to the effect that only the lesser offence punishable under Section 354 Indian Penal Code was made out. By implication therefore, the accused was acquitted of the offence punishable under Section 376 Indian Penal Code and was convicted of the lesser offence punishable under Section 354 Indian Penal Code and sentenced to undergo R.I. for eighteen months and to pay a fine of Rs. 2,000.00. The accused preferred an appeal to this Court being Criminal Appeal No. 689 of 1990 which was disposed of on 16th December, 1995. The procedural error that was pointed out to the High Court when the appeal was argued was that it is mandatory for the trial Court to put to the accused at the time when the statement under Section 313 Code of Criminal Procedure is recorded all the incriminating evidence that the prosecution has led against the accused and the law prescribes that this has to be done in order to afford the accused an opportunity of tendering an explanation for that evidence or in relation to those circumstances. The High Court found that the learned trial Judge had committed a serious error in only having put one composite question to the accused and that the provisions of Section 313 Code of Criminal Procedure had been breached. On this ground, the conviction and sentence were set aside and the case was remanded to the trial Court with a specific direction that the remand is at the stage of the 313 Criminal Procedure Code statement which had to be correctly recorded and the case then disposed of according to law.
(2.) THE learned trial Judge after the remand complied with the requisite formalities and disposed of the Sessions case through judgment and order dated 28.11.1996. One of the factors which the Court took into account was that the accused had been regularly attending the trial Court for virtually nine years as the earlier case was of the year 1997 and having regard to the length of the proceeding and trial the accused had been subjected to, the Court awarded a fine of Rs. 2,000/ - in default, three months R.I. The State has challenged the validity of this order through the present appeal and the contention is that the acquittal under Section 376 Indian Penal Code is wrong and that the Court must modify the order of the trial Court and convict the accused for the offence punishable under Section 376 Indian Penal Code. The accused is served and unrepresented and having regard to his status, it was obvious to us that he is not in a position to make necessary arrangements and we have therefore appointed learned Advocate Sri E.R. Diwakar as Amicus Curiae. The learned Advocate has perused the entire record of this lengthy proceeding. We have thereafter heard the learned Advocates on both sides on merits.
(3.) MR . Diwakar who appears on behalf of the Respondent -accused draws our attention to the fact that when the accused had preferred Criminal Appeal No. 689 of 1990 which was against his conviction for the offence punishable under Section 354 Indian Penal Code, that the State had not preferred any appeal challenging the acquittal of the accused under Section 376 Indian Penal Code by the trial Court. His submission therefore is that the acquittal under Section 376 Indian Penal Code had attained finality and that the High Court was only dealing with the limited question relating to the conviction under Section 354 Indian Penal Code and that therefore, even when the High Court remanded the case to the trial Court the remand order was confined to Section 354 Indian Penal Code. He therefore submits that in the light of this clear background that the State is totally and completely precluded at this point of time from challenging the acquittal of the accused under Section 376 Indian Penal Code for the reason that the acquittal is not part of the present order under challenge but that it is part of the earlier judgment which has attained finality to this extent. In this regard, his further submission was that assuming that the accused did not challenge his conviction under Section 354 Indian Penal Code and was satisfied with undergoing the sentence, that there would have been no question of the issue regarding Section 376 Indian Penal Code being reopened since the State had not filed any appeal against that acquittal. Consequently, his submission was that no relief is competent in the present appeal and that it is liable to be dismissed.