High Court
Case Details
Crl.A. 179/2009 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN and Mr. B. J. Dutta, learned Addl. Public Prosecutor, Assam. Heard Mr. A. K. Bhuyan, learned Amicus Curiae for the appellant 2. This appeal is directed against the judgment and order dated 31. 08.2009 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 13 (D H)/2009 convicting the appellant under Section 448/354 IPC and sentencing him to undergo simple imprisonment (SI) for 2 (two) months with fine of Rs. 500/-, in default, to undergo further SI for 8 (eight) days for the offence committed unde r Section 448 IPC and to undergo SI for 6 (six) months with fine of Rs. 1000/-, in default, to undergo further SI for another 15 (fifteen) days for the offence committed under Section 354 IPC, both the sentences to run concurrently.
Legal Reasoning
3. Prosecution case in brief as can be seen from the first informat ion is that on 19.12.2008 at about 7:00 p.m. while the informant was alone in he r residence, the accused entered into her house and dragged her out to the court yard, where he committed rape on her. When she raised hue and cry, her husband c ame and the accused fled from the place of occurrence. The first information was treated as FIR and on the basis of the same, Dhemaji PS Case No. 551/2008 under Section 448/376 IPC was registered. 4. Police investigated the case and in the course of investigation sent the informant (prosecutrix) for medical examination on the next day i.e. on 20.12.2008. On completion of the investigation, police submitted charge-sheet a gainst the accused under Section 448/376 IPC. The offence under Section 376 IPC being exclusively triable by a Court of Sessions, the case was committed to the Court of Sessions Judge, Dhemaji by the Chief Judicial Magistrate vide order dat ed 10.02.2009. 5. After furnishing of relevant documents to the accused, charge wa s framed by the trial Court on 16.02.2009. The accused was charged with the comm ission of the two offences. 6. The first charge was that he on or about 19.12.2008 at about 7:0 0 p.m. in Subahi Bongalmari Gaon under Dhemaji Police Station committed house tr espass by entering into the house of the prosecutrix in order to commit the offe nce of rape. Thus, he committed the offence punishable under Section 448 IPC. Th e accused was also charged that he or on about the same day, time and place, com mitted rape on the prosecutrix, thus committing an office punishable under Secti on 376 IPC. When the charges were read over and explained to the accused, he ple aded not guilty and claimed to be tried. 7. Prosecution examined as many as 7 (seven) witnesses, including t he Doctor and the Investigating Officer. The defence did not adduce any evidence . However, the accused was examined under Section 313 Cr.PC. The defence plea wa s of total denial. Further stand taken was that the accused had given money to t he family of the prosecutrix and he had gone to her residence to get back his mo ney. Since the money was not re-funded, he was falsely implicated. 8. Learned trial Court after considering the evidence adduced and t he materials on record held that the evidence of the prosecutrix herself and the medical evidence negate the possibility of rape being committed on her by the a ccused. Though the charge under Section 376 IPC could not be proved, the learned trial Court came to the conclusion that the offence under Section 354 IPC and 4 48 IPC was committed by the accused and he was accordingly convicted. After hear ing him on the point of sentence, learned trial Court sentenced the accused for the periods as indicated above. 9.
Legal Reasoning
Mr. Bhuyan, learned Amicus Curiae, submits that the allegation i n the FIR was of commission of rape. When the informant adduced evidence as PW 1 the allegation was diluted from commission of rape to an attempt to commit rape . He further submits that the victim was medically examined on the very next day after the day of the occurrence, which was on or about 7:00 p.m. on 19.12.2008. In other words, the victim was medically examined within 24 hours of the allege d occurrence. Referring to the medical evidence, learned Amicus Curiae submits t hat the scratch mark on the bilateral thigh of the victim was more than 24 hours old and as per the medical opinion, there was no sign of forcible sexual interc ourse except the presence of those scratch marks which according to the medical evidence could be due to itching. He further submits that no specific evidence s pecifying any instance which could constitute the ingredients for commission of the offence of outraging the modesty of the victim was present. He submits that when the prosecution case regarding commission of rape has been disbelieved, no case for conviction either under Section 354 IPC or under Section 448 IPC can be made out without any independent evidence. He also submits that it is highly im probable that the accused, who is charged with commission of the offence of rape , will drag the prosecutrix outside the house and not inside the house. He final ly submits that the appellant had already undergone detention for about 4 (four) months. He was arrested on 22.12.2008 and released on 20.04.2009. He, therefore , seeks quashing of the conviction and for setting the appellant at liberty. 10. Opposing the submissions made by the learned Amicus Curiae, lear ned Addl. Public Prosecutor has referred to the evidence of PW 1 (Prosecutrix) a nd PW 2, who is her husband, and submits that from a conjoint reading of the evi dence of the aforesaid two witnesses, it is clear that offence under Section 354 /448 IPC had been committed and, therefore, the learned trial Court was justifie d in convicting the accused under the aforesaid provisions of law. He submits th at no interference in so far conviction of the appellant is concerned is called for. However, on the point of sentence, he fairly submits that in view of the fa ct that the appellant had already undergone detention for a period of about 4 (f our) months, the Court may consider modifying the sentence to the period already undergone. 11. 12. on record. Submissions made have been considered. I have also perused the evidence adduced and the other materials 13. Since the charge under Section 376 IPC could not be proved in th e trial, the same is not required to be gone into by this Court. Coming to the s ections under which the appellant has been convicted, a brief dilation on the sa me is considered necessary. 14. Section 354 IPC provides that whoever assaults or use criminal f orce on any woman intending to outrage her modesty or knowing it likely that by assault or by use of such criminal force her modesty may likely to be outraged, shall be punished with imprisonment of either description for a term which may e xtend to two years or with fine or with both. A careful reading of the aforesaid provision would indicate that committing assault or using criminal force on any woman with intent to outrage her modesty are the conditions precedent for commi ssion of an offence under Section 354 IPC. Force is defined in Section 349 IPC whereas criminal force is de 15. fined in section 350. Again, assault is defined in Section 351 IPC. On the other hand, Section 448 IPC provides for punishment for house trespass which is defin ed in Section 442 IPC. 16. Coming to the evidence of PW 1, she stated that the accused had entered into her house and dragged her out to the courtyard where he tried to c ommit illicit acts on her. She raised hue and cry and thereafter became unconsci ous. According to her, hearing her hue and cry, her husband, who was not at home , came home and seeing her husband, the accused fled away. She reported the inci dent to her husband. The evidence of the husband, PW2, corroborates the evidence of PW1. He saw the accused fleeing from the place of occurrence and found his w ife lying on the courtyard. She told him about the illicit acts committed by the accused on her. The accused in his statement under Section 313 Cr.PC. admitted going to the residence of the prosecutrix. The plea taken that he had gone there to demand repayment of money which he had allegedly given to the prosecutrix an d her husband does not inspire confidence and this aspect was also not brought o ut during cross-examination. 17. In view of the factum of presence of the accused in the residenc e of the prosecutrix, that too, in the late evening hours in a rural setup when her husband was not present, coupled with the evidence of PW 1 and PW 2, a clear case of commission of offence under Sections 354/448 IPC is made out against th e accused. To that extent, the finding of the learned trial Court cannot be said to be erroneous. 18. In view of above, the conviction of the appellant under Sections 354/448 IPC is upheld. 19. Coming to the question of sentence, learned trial Court had orde red both the sentences to run concurrently, meaning thereby that appellant would have to undergo SI for 6 (six) months and in case of default in the payment of fine, to undergo SI for another 15 days. As seen from the record, the appellant was arrested on 22.12.2008 and continued to remain in custody till 20.04.2009 i. e., for a period of about 4 (four) months. 20. Considering the period undergone by the appellant and taking an overall view of the matter, the sentence imposed on the appellant is modified to the period already undergone. 21. osed of as indicated above. Registry to send down the record. Accordingly, the appellant be set at liberty. Appeal stands disp Before parting with the record, this Court would like to place o 22. n record its appreciation of the assistance rendered by Mr. A. K. Bhuyan, learne d Amicus Curiae, who shall be paid the prescribed fee.