High Court
Legal Reasoning
HON’BLE MR. JUSTICE P.K.MUSAHARY JUDGMENT AND ORDER (ORAL) This is an appeal preferred u/s 378(4) of the CrPC against the j udgment and order dated 02.06.2009 passed by the learned Sessions Judge, Hailaka ndi, in Crl. Appeal Case No. 19/2008 reversing the order of conviction dated 30. 8.2009 passed by the learned CJM, Hailakandi, in CR Case No. 953/2005 under Sect ions 354/435/34 IPC. 2. The prosecution case, in brief, is that on 27.12.2005 the appell ant filed a complaint before the learned CJM, Hailakandi, alleging that on 22.12 .2005 at 10 P.M., taking advantage of absence of her husband at home, the respon dents accused persons trespassed into her house and outraged her modesty and the n attempted to commit rape on her. She resisted the accused-respondents and crie d for help. Hearing her cry, her two sons who were present in the same room, awo ke from sleep and they saw the scuffling. The accused respondents then fled away but threatened that if the incident is disclosed to anybody they would set fire on her house. As soon as the appellant’s husband returned home, she narrated th e incident to him who arranged for a village bichar. The accused persons did not attend the said meeting. Thereafter on 24.12.2005 at about 2/2.30 AM the accuse d persons set fire on her kitchen, as a result of which the paddy stored in the kitchen was burnt to ashes. Being attracted by the alarm raised by the complaina nt, neighbouring people came to put off the fire. The appellant’s husband could recognize the accused persons while they were fleeing away from the scene. There was another local village bichar held on 26.12.2005 which was arranged by the u ncle of the complainant. The accused persons did not turn up in the said meeting also. Ultimately, the appellant had to file a complaint in the Court of the lea rned CJM, Hailakandi. After recording the initial deposition of the complainant, the learned CJM took cognizance of the case under Sections 354/435/34 IPC. Summ ons was issued to the accused persons and on receipt of the same they appeared b efore the court and on completion of the trial, the accused persons were convict ed under the aforesaid sections of law and sentenced to undergo imprisonment of 1 year and 6 months with fine of Rs. 500/- each. Being aggrieved by and dissatis fied with the order of conviction and sentence, the accused persons preferred an appeal before the learned court of Sessions, Hailakandi, which was registered a s Crl. Appeal No. 19/2008. Upon hearing the learned counsel for the parties, the learned Sessions Judge, Hailakandi, vide judgment dated 2.6.2009 acquitted the accused setting aside the order of conviction passed by the learned trial court. The complainant is now before this Court against the order of acquittal passed by the learned Appellate Court below. 3. In his oral submission, Mr. Borthakur, learned counsel for the r espondents No. 1 and 2,submitted that there was a delay of 5 (five) days in fili ng the complaint and it was fatal to the prosecution case and the court should h ave disbelieved the prosecution story. On perusal of the record, I have found that the complainant befo 4. re approaching the learned Court of CJM, tried to get justice at the village lev el and at least two village meetings were held but the accused persons did not t urn up for which no decision could be taken and ultimately she had to approach t he court of law for justice. In my considered view, in such circumstances the de lay is not fatal to the prosecution case. As regards the imposition of sentence, it is stated at the bar that accused No. 1 Farizuddin Laskar is a Government se rvant while the accused No. 2, Md. Sukkur Ali Laskar, is a daily wage earner. 5. I have carefully perused the lower court records as made availab le at the time of hearing. I have particularly gone through the complaint and th e initial deposition of the complainant-appellant along with her deposition befo re the trial court. In the complaint the appellant, as a victim woman, made several 6. allegations including commission of rape by the appellant upon her on the night of occurrence. Before she was ravished, she was stripped and caught hold of her neck. In the initial deposition she had differed a little from the allegation sh e made in the complaint inasmuch as she did not say that she was raped but state d that one of the accused-respondents tried to remove her wearing apparels while the other accused caught her by neck and tried to outrage her modesty. From thi s evidence, it appears that she was, in fact not raped by the accused persons. T hey, no doubt, tried to commit rape upon her and as such the offence u/s 376 IPC would not attract. Moreover, she admittedly, received no injury on her person a nd as such the offence u/s 435 IPC also would not attract. 7. In her evidence before the trial court the victim has deposed, a mongst others, that one of the accused Farizuddin, tried to remove her wearing a pparels and the other accused Sukkur Ali, caught hold her by neck and outraged h er modesty. She has not stated that she was raped by them. The occurrence was wi tnessed by PW 3 and 4. PW 3 is the son of the appellant who was aged about 9 yea rs at the time of occurrence. His evidence is that he saw his mother scuffling w ith the accused persons at the time of occurrence. PW 3 is a natural witness bei ng the son of the appellant/complainant and was sleeping with her mother in the same room. He may be an interested and related witness but since he is a natura l witness and witnessed the incident in his own eyes, the Court has to accept hi s deposition as a piece of valid legal evidence inasmuch as it has not been imp eached by the defence in cross examination. In cross examination, the evidence o f this witness could not be impeached. From the trend of the cross examination i t is found that the presence of the accused persons in the house of the complain ant on the night of occurrence has not been denied. Even no suggestion was put t o PW 3 who corroborated the evidence of the complainant that he did not see the incident in his own eyes. I have found the evidence of the complainant fully sup ported by the eye witness PW 3 and the court is justified to take a view that th e accused-appellants were present in the house of the complainant on the date an d time of occurrence and they outraged the modesty of the complainant by removin g her wearing clothes by one of the appellants and holding her by neck by anothe r accused-respondent. In my considered view, the charge u/s 354 IPC is establish ed beyond reasonable doubt and the accused-respondents are liable to be convicte d u/s 354 IPC. The Respondents No. 1 and 2, thus, stand convicted. 8. In my considered view, the ends of justice would be met if fine of Rs. 3,000/- each is imposed on the accused persons for committing the offence u/s 354 IPC. The Respondents No. 1 and 2 are hereby sentenced to pay fine of Rs .3,000/- each. They shall deposit the aforesaid amount within a period of one mo nth from today in the court of learned CJM, Hailakandi and on receipt of the sai d amount, an amount of Rs. 1,500/- each, that is half of the total amount i.e. Rs. 3,000/-, shall be disbursed to the appellant/complainant after issuing due n otice. In case the accused-respondents fail to deposit the amount they shall und ergo simple imprisonment for 4 (four) months. 9.
Decision
Appeal stands partly allowed and disposed of. Return the LCR forthwith.