High Court · 2012

5. The learned trial Court framed two charges against the accused, one for committing an offence punishable u/s 457 IPC and the other u/s 376/511 I PC. When the charges were read over and explained to the accused, he pleaded not guilty and claimed to be tried.

6. The prosecution examined as many as six witnesses to prove the c harges brought against the accused. The defence side did not adduce any evidence . However, the defence took the plea of complete denial.

7. After considering the evidence adduced and after hearing the arg uments of both the sides, the learned trial Court held that the charges u/s 354/ 457 IPC stood well established against the accused and accordingly convicted him under the aforesaid sections and imposed the sentences as indicated above.

8. Aggrieved, the accused is in appeal. This Court by separate orde rs dated 23-09-2003 admitted the appeal and allowed the appellant accused to go on fresh bail.

9. I have heard Mr. M. Bhuyan, learned Counsel for the appellant as well as Mr. K. Munir, learned Additional Public Prosecutor, Assam appearing for the state respondent.

10. Mr. Bhuyan, learned Counsel for the appellant fairly submitted t hat based on the materials on record he would not argue for a clean and clear ac quittal of the appellant. He, however contends that when the charge u/s 376 IPC could not be proved against the accused, he ought to have been convicted for a l esser offence, such as the one u/s 509 IPC. According to him, the offence u/s 35 4 IPC is not a minor offence as it is construed to be a major offence. In this c onnection, he refers to the provision of Section 222 of the Code of Criminal Pro cedure, 1973 (Cr.P.C.) to contend that when the charge for the major offence cou ld not be proved, the conviction should have been brought down to a minor offenc e such as the one u/s 509 IPC. He therefore submits that the conviction may be altered accordingly and the sentence imposed suitably modified. In support of hi s submissions, learned Counsel places reliance on the following decisions :- (1) AIR 1961 All 131; (Bankay -Vs- State) (2) 1978 Cri. L.J 498 ; (Vazhambalakkal Thomachan -Vs- State of Kerala) (3) (2001) 2 SCC 577; (Shamnsahed M.Multtani -Vs- State of Karnataka)

11. On the other hand, Mr. Munir, learned Additional Public Prosecut or submits that the ingredients constituting offences u/s 354/457 IPC are clearl y present and, therefore, the learned trial Court was justified in convicting th e appellant under the aforesaid sections. He further submits that compared to th e offence u/s 376 IPC, an offence u/s 354 IPC is undoubtedly a lesser offence. H e, therefore, submits that there is no merit in the appeal and the same should b e dismissed.

12. en duly considered. The arguments of the learned Counsels for both the sides have be

13. ant evidence is considered necessary. To appreciate the rival contentions, a brief survey of the relev

14. , who are as follows :- As has been stated above, the prosecution examined six witnesses PW 1 PW 2 PW 3 PW 4 PW 5 PW 6 ---- ---- ---- ---- ---- ---- Siraj Uddin Islam Uddin Mustt. Mustafa Begum Ajizur Rahman Md. Abdul Jalil Shri Kanti Bhusan Deb.

15. PW 1 Siraj Uddin is the elder brother of the victim woman Mustaf a Begum. He stated that on the night of the occurrence at about 1:00 am he came out of his room on hearing hue and cry of his sister who was sleeping in the nea rby room. He saw a man coming out of his sister’s room. When he raised alarm, ot her members of his family came out of the house and caught hold of the person wh o is the accused. His sister told him that while she was sleeping, the accused c lasped her. When she raised alarm, he fled away from her room.

16. PW 2 is Islam Uddin, who is the informant. He is the paternal un cle of the victim woman and the immediate neighbour of PW 1. He stated that on t he night of occurrence he was returning home after attending an invitation. As h e came near his house, he heard hue and cry coming from the house of PW 1. Heari ng the same, he rushed to the house of PW 1 where he found the accused detained by the inmates of the house of PW 1. Father of PW 1 told him that the accused ha d entered into the room of his daughter Mustafa Begum and attempted to commit ra pe on her. Thereafter, PW 2 lodged the FIR.

17. PW 3 is the victim woman Mustafa Begum. She stated that on the n ight of occurrence, while she was sleeping, the accused entered into her room at about 1:00 am and clasped her with ill motive. When she cried out, the accused tried to flee but was over powered and detained by her elder brother PW 1 just o utside her room. She deposed that the accused had pressed her breast.

18. PW 4 is Azizur Rahman, another brother of the victim woman. In h is evidence, he stated that he had caught hold of the accused. His evidence corr oborates the evidence of PWs 1, 2 and 3.

19. Abdul Jalil, an uncle of the victim woman is the PW 5. Though he was declared hostile, even in his evidence he stated that he had seen the accus ed person being detained in the house of PW 3 at the relevant time.

20. Shri Kanti Bhusan Deb is the investigating officer of the case. He is PW 6. In his evidence, he stated that after receipt of the FIR, he immedia tely proceeded to the place of occurrence and arrested the accused from the hous e of the victim woman.

21. From the evidence discussed above, it is well established that t he accused had entered into the room of the victim woman on the night of 26-03-1 994 / 27-03-1994 while she was sleeping. When she raised hue and cry, the accuse d tried to flee but was overpowered by the family members of the victim woman, i ncluding PW 1 and PW4. The other witnesses, including PW 2, had seen the accused being detained in the courtyard of the residence of PW 1. After the PW 2 lodged the FIR, the police came to the place of occurrence and arrested the accused fr om the house of the victim woman.

22. When a person intentionally enters into a room where a lady is s leeping, that too at night, the only rational inference that can be drawn is tha t it was with the intention to commit some offence in relation to that lady. The victim woman has stated in clear terms that the accused had clasped her and had pressed her breast. She had also stated the same thing to her elder brother PW 1 which has come out in his evidence. There is no reason to disbelieve the testi mony of the victim woman PW 3.

23. In view of the above deliberation, it is clear that the accused had committed lurking house trespass by night or house breaking by night to comm it an offence punishable with imprisonment. Moreover, the accused had used crimi nal force intending to outrage the modesty of PW 3. As such, in the considered o pinion of this Court, the offence u/s 354/457 IPC stands established against the accused.

24. The argument of the learned Counsel for the appellant that the o ffence u/s 354 IPC is a major offence and that when the charge u/s 376 IPC could not be proved, the conviction of the appellant should have been altered to one u/s 509 IPC cannot be accepted on the face of the over whelming weight of the ev idence on record. Compared to conviction u/s 376 IPC, conviction u/s 354 IPC is definitely a lesser one. Moreover, viewed in the context of the appellant’s conv iction u/s 457 IPC, the ancillary conviction can be only u/s 354 IPC and not u/s 509 IPC. The decisions relied upon by the learned Counsel for the appellant are clearly distinguishable and not applicable to the facts of the present case.

25. of the accused u/s 354/457 IPC is affirmed. The end result of the above deliberation is that the conviction

26. Now coming to the sentence, it is seen that the occurrence took place on 27-03-1994 i.e. more than 18 years ago. It is also seen that the accuse d was taken into custody for about 15 days during the stage of investigation.

27. Considering the above and taking an overall view, the sentence i mposed by the learned trial Court is modified. For the offence u/s 457 IPC, the accused is sentenced to undergo RI for 6(six) months and to pay fine of Rs.500/- , in default, to undergo further RI for 1(one) month. For the offence u/s 354 IP C, the accused is sentenced to undergo RI for 3(three) months. Both the sentence s to run concurrently. Period under gone to be set off. Appellant to surrender in the Court of the Adhoc Additional Sess 28. ions Judge, Karimganj within 30 (thirty) days from today to carry out the senten ced.

30. Appeal stands allowed to the extent indicated above. Registry to send down the LCR.