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Judgment
Lawrence Jenkins, K.C.I.E., C.J.—The accused was charged u/s 376 of Indian Penal Code with the rape of a girl.
He was convicted by the first Court.
On appeal to the Sessions Judge, that conviction was set aside on the ground that the girl had consented.
The Sessions Judge, however, convicted the accused u/s 366 and passed sentence on him.
In our opinion it was wrong of the Judge to have proceeded u/s 366 because a charge under that section involved different elements and different questions of fact from a charge u/s 376.
On the ground, therefore, that there has been an irregularity in the procedure of the Sessions Judge, we set aside his order except so far as it involves an acquittal u/s 376.
But we express no opinion as to further proceedings being taken u/s 366 or 497.
The accused is, therefore, discharged and the fine, if paid, must be refunded.