High Court
Case Details
Crl.A. 125/2010 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL JUDGEMENT AND ORDER (CAV) This case has assumed importance not only due to the gravity of the offe nce but also due to gross negligence of the prosecution in conducting the trial of an offence of attempted sexual assault upon a deaf and dumb girl. The appeal is directed against the judgment dated 30.6.2010 passed by th 2. e learned Addl. Sessions Judge, FTC, Nagaon in Sessions Case No. 307(N) of 2005, whereby the appellant has been convicted under Sections 323/447/376 r/w Section 511 of the Indian Penal Code. After conviction for the aforesaid offences, the appellant has been sentenced to undergo 4(four) years R.I. and also to pay fine of Rs. 500/- (Rupees five hundred) only with default stipulation of further S.I . for 15 (fifteen) days for the offence of attempted rape and fine of Rs. 500/-( Rupees five hundred) only has been imposed for other offences each, with default sentence of 15(fifteen) days S.I. Being aggrieved with the conviction and sente nce the accused has preferred this appeal. 3. I have heard Mr. AM Bora, learned counsel for the appellant and Mr. Z. K amar, learned PP for the State. Also gone through the impugned judgment and the evidence proffered by the prosecution in the trial court. The defence case was o f total denial and no evidence in defence was adduced by the accused. 4. The gist of the prosecution case is that the victim was a deaf and dumb girl. At about 10.00 PM in the night of 22.7.2005 she went out in the courtyard to close the gate. Suddenly, the accused, who was staying in the same locality, grabbed the victim girl from behind and fell her down on the ground with an att empt to sexually molest her.
Legal Reasoning
5. Since the victim girl continued to feel body pain, she was taken to the Doctor, Atul Chandra Pator, who was attached to Papulata Medical Hall Chaklaghat , Nagaon for her medical examination and treatment on 24.7.2005. Since the accus ed was an immediate neighbour the victim’s family waited for amicable settlement . Hence, there was few days delay in filing the FIR. The FIR was lodged on 5.8. 2005 by the brother of the victim girl, which was registered as Jajori PS Case No. 49 of 2005 under Sections 447/376/511/325 IPC. 6. The case was investigated by S.I. Anadi Das, who was the Officer-in-Char ge of Jajori police station at the relevant time. After visiting the site of inc ident and recording the statement of the witnesses he forwarded the victim girl for medical examination on 8.8.2005. This time, the victim was medically examin ed by Doctor Nazrul Islam, M & H.O.-(I) of B.P. Civil Hospital, Nagaon. Since t he victim was a deaf and dumb girl and could not orally divulge the name of the culprit, the Investigating Officer also held T.I.P. in the jail under the superv ision of a Judicial Magistrate. The statement of few witnesses were also obtaine d under Section 164 of the Criminal Procedure Code. Prior to that the accused h imself had surrendered in the police station on 11.8.2005. After completing the investigation charge-sheet No.39/05 was submitted on 16.9.2005. 7. To establish the aforesaid offences, the prosecution examined altogether 9(nine) witnesses. As could be gathered from the record two witnesses namely, D octor Sri Nazrul Islam and the informant Sri Dwipen Bora were given same Sl. No . as PW 1. This was the first instance of casual handling of the case by the th en conducting Presiding Officer and also the then Public Prosecutor. PWs 2, 3 an d 4 are the witnesses from the family of the victim girl. PW 5 is a co-villager. PW 6 is the learned Judicial Magistrate. PW 7 is the Investigating Officer and the PW 8 is Doctor Atul Chandra Pator. The learned Judicial Magistrate and Inves tigating Officer were also examined twice in the court as the original T.I.P. re port was not exhibit earlier. This was the second lapse in the prosecution. 8. es, as noted earlier. After the trial was over, the appellant was convicted for various offenc
Legal Reasoning
9. Mr. Bora, learned counsel for the appellant strongly argued that there w as no attempt to sexually ravish the victim girl and, as such, the conviction of the appellant under Section 376 r/w Section 511 of the IPC is untenable in law. The learned counsel also submitted that since the prosecution witnesses failed to establish the offences beyond any reasonable doubt the appellant is also enti tled to be acquitted from all the offences. The learned counsel for the appellan t also argued that the impugned judgment is liable to be set aside inasmuch as t he conviction has been recorded on the basis of the statements given before the learned Judicial Magistrate under Section 164 of the Cr.P.C., which cannot be ac cepted as legal evidence. 10. On the other hand, the learned PP submitted that there are sufficient ev idence to at least convict the appellant for outraging the modesty of a woman (S ection 354 IPC) and also for the offences under Sections 447 and 323 of the IPC. The learned PP re-iterated that though the statements made under Section 161 o f the Cr.P.C. can be used only for a limited purpose for contradicting the witne sses in the court, the statements recorded under Section 164 of the Cr.P.C. has some evidentiary value since these statements are given under oath and can be ta ken into consideration for corroboration of other evidence in the court. I find that the entire case revolves around the testimonies of PWs 2, 3 11. and 4. PW 2 asserts that she was an eye witness to the incident. She deposed in the court that at about 10.30 PM she was sitting in the varanda of their house a nd victim went to close the gate of the compound. At that moment the accused emb raced the victim girl from backside and fell her down on the ground and thereaft er mounted over her body. PW 2 has further deposed that as a result of bite on t he cheek blood had oozed out. The witness further deposed that seeing the incide nt she immediately called her brother Tularam Bora and Jatin Bora and by the tim e her brothers proceeded towards the gate the accused had fled away. PW 2 has fu rther deposed that thereafter her brothers chased the accused along with the vic tim girl but he was not found in his house. However, the victim girl pointed out the room of the accused by gesture. On the next day a village meeting was held wherein the accused denied having committed any offence. 12. In the cross-examination, PW 2 has admitted that at the time of the occu rrence she was busy in washing utensils near a tubewell in front of their house. The witness denied the defence suggestion that she did not narrate the incident to the I.O. , as stated in the court. PW 2 also denied that she did not witness the occurrence and no incident had taken place as deposed by her in the court. The witness further denied the defence suggestion that the victim girl did not i mplicate the accused by way of pointing out his room. 13. PW 3 has also deposed that at the relevant time she was in the front var anda of the house at about 10.30 PM. According to this witness, the victim girl came from the road side and showed her lips, wherefrom blood was oozing. Accordi ng to PW 3, the victim girl also narrated the incident by gesture that she was g rabbed by a person. The witness has further claimed that she showed the accused running through the courtyard. Thereafter, the victim girl accompanies other fam ily members to the house of the accused. However, she did not accompany them. PW 3 is the wife of Sri Tularam Bora and her husband had gone in search of the acc used to his house. 14. In the cross-examination PW 3 has admitted that they live in a separate house and the victim girl used to sleep in their house. The witness has clarifie d that their house is situated in the same compound along with the house of PWs 1 and 2. The witness was also confronted by the defence that she did not say bef ore the I.O. that at the relevant time she was in the varanda and she did not se e any injury on her lips or narrated the incident by gesture. PW 3 further denie d that she did not state before the I.O. that she saw the accused running away f rom the place of occurrence and that after the incident the victim girl accompan ied by Putuli Bora and Ramen Bora went to the house of the accused. 15. PW 4 is another brother of the victim girl. He has deposed that at the relevant time he was inside the house. According to PW 4 after hearing halla he came out and saw the victim girl coming towards the house from the gate and he s aw blood on her mouth. The witness has further deposed that the victim girl told them by gesture that somebody tried to molest her and thereafter he went to the house of the accused along with the victim girl and his brother Tarun Bora and others. PW 4 has also re-iterated that the victim girl implicated the accused in the crime by pointing out his bed room. 16. In the cross-examination PW 4 has re-iterated that she saw the victim gi rl only half feet inside the gate and by that time PWs 2 and 3 had already arriv ed near the victim girl. The witness has denied the defence suggestion that the victim girl led them to the house of the accused and showed his room. PW 1 is also the brother of the victim girl. He was not at home on the r 17. elevant night. This witness has deposed that when he returned home next morning he was told that his sister was grabbed by somebody from behind and in the attem pt of sexually assault she had sustained injuries on her face. PW 1 has further deposed that his sister had showed them the house of the accused and indicated that the appellant was the culprit. Since PW 1 stated in the court that FIR was lodged out of suspicion, he was declared hostile. In my considered opinion, even if the testimony of PW 1 is left out of consideration the appeal can still be d ecided on the basis of other testimonies in the record. 18. PW 5 is the married sister of the informant. She has deposed that though the incident had taken place in the house of her brother she cannot say as to w hat had exactly happened. Hence, the testimony of PW 5 is also left out of consi deration. 19. Since the statements made before the learned Judicial Magistrate has cor roborative value, I would also like to re-produce the statement of at least PW 2 , Smti. Putuli Bora since she is the prime witness of the prosecution. It is als o necessary to produce her statement given before the I.O. U/s 161, which are as below: 20. ing) Statement of PW2, Smti. Putuli Bora U/s 161 CrPC. (English render (cid:28)It was drizzling around 10-30 PM 22.07.05. Having had her dinne r my husband’s sister Konmai Bora went to attend to nature’s call. When she was coming to elder brother’s house in order to sleep there, a youth called Maina ca me into our compound and grabbed Konmai Bora (dumb) and fell her onto the ground . This resulted in to a scuffle. She somehow managed to free herself and entered elder brother Tularam Bora’s house in a run. There, she expressed through gestu res that a stout youth had grabbed her. She went to Maina’s house along with eld er brother during the night itself and pointed out Prankrishna’s bedroom. (cid:29) 21. ersion Deposition of PW 2 Putuli Bora U/s 164 CrPC in the court. (English v (cid:28)I know the accused persons. He lives near our house. Dwipen Bora is my husband’s younger brother, while Kanmai Bora is my husband’s elder sister. The i ncident took place about a year ago. Around 10.30 p.m. on the night of the incid ent it had been raining. Kanmai Bora had gone to close the gate. I had been sitt ing at the verandah. About that time Prankrishna came from behind, grabbed Kanma i and felled her. After that, Pran Krishna climbed over her. The accused bit h er in the cheek and caused blood to flow. I kept watching. I called Tolaram Bora and Jatin Bora. As we proceed towards the gate, the accused ran away. We came t o the gate and then ran to the accused persons house, chasing him. We did not fi nd the accused at home. It was scheduled to compromise the issue the next day. Members of the pu blic assembled. They assembled on three days for setting the issue. But, on the third day, the accused denied his involvement. As nothing came out in the ’mel’ (an extra judicial trial), we filed a case. Husbands younger brother Dwipen Bora filed the case. He was not at home on the day of incident. He had gone on a soc ial visit and returned home around midnight. We told Dwipen about the incident. When nothing came out in the ’mel’, he lodged the ejahar. Kanmai accompanied us to the accused persons house. She is a deaf and du mb woman. She showed the incident with her hands. She showed us the house of the accused. The accused is called Maina at home. Kanmai is more than 40 years old. Police interrogated me about the incident (cid:29). 22. Cross Exam of PW 2 Putuli Bora in Court (cid:28)We take our meals at 9 or 10 O’ clock. My husband has five brothers, excluding himself. The eldest one lives separately. The rest live jointly. We wash the ute nsils on the bank of the front well. That day also we washed the utensils. (Actu ally) I washed the utensils. A PWD road passes by the front of our house. It run s from Demow to Raidingiya. Our house is in the south of the road. At the time o f the incident, we had been busy washing the utensils. It is not true that I did not tell the police that it had been raining a t 10.30 p.m. that day; that Kanmai had gone to shut the gate; that I was sitting in the veranda; that about that time Pran Krishna had come and having grabbed K anmai from behind; fell her down and mounted over her; bit her in the cheek, cau sing blood to flow out; that I had kept watching; that I called my brothers Tola ram Bora and Jatin Bora; that we had proceeded towards the gate whereupon the ac cused had run away; that we had chased the accused up to home but failed to find him. A villege meeting was held the next day, but no settlement could be reache d. It is not true that I did not say this to the police. It is also not true tha t I did not tell the police about Kanmai accompanying us to the accused person’s house. It is not true that I did not tell the police that the accused is called Maina at home. Having seen the incident, I had raised a commotion. It is not true that I did not tell the police about my raising a commotion. It is not true that I ha d not seen the incident. It is not true that no incident had taken place that da y. It is not true that Kanmai had not pointed at the accused. (cid:29) 23. During the cross-examination of I.O. the learned defence counsel pointed out the contradictions of PW 2 given by the witnesses in her statement under S ection 161 of the Cr.P.C. The I.O. (PW 7) admitted the contradictions of PW 2 in the following words. (cid:28)Witness Putuli Bora did not tell me that she had witnessed the incident . She did not tell me that it had been raining at 10.30 p.m.; that Kanmai had go ne to close the door; that she had been sitting at the verandah; that about that time Pran Prishna had arrived there and had felled her on the ground by grabbin g her from behind; that later he had got on to Kanmai’s abdomen; that he had bit e her lips, causing these to bleed. The witness did not tell me that she had see n the entire incident; that when she had called Tularam Bora and Satin Bora, the accused had run away; that the accused could not be found at his home despite b eing looked for there. None of the witnesses told me that there had been meeting s in connection with the incident. The witness did not tell me that along with Kanmai and the other witness es, she had gone to the accused persons house and had called Maina. (cid:29) (cid:28)Witness Ila Bora did not tell me that the accused had run away from the place of occurrence. This witness also did not tell me that Ramen, Putuli and K anmai had gone to the house of the accused. She also did not tell me about Kanma i’s saying through gesticulations that the accused had grabbed her (cid:29) 24. ng) Statement U/s 164 Cr.P.C. of PW 2, Smt Putuli Bora. (English renderi (cid:28)The incident took place on 22.7.2005. It was around 10.30 p.m. When my ’jethahu’ (the elder sister of one’s husband or wife-tr) Kanmai Bora was going t o close the gate, Pran Krishna (Maina), with an intention to commit rape on her fell her on the ground and bite and scratched her in the face, neck and chest. T he lamp (electric) of our verandah was burning and the light (of the lamp) cover ed the gate approach. I noticed both of them. I saw Maina kept Jethahu grabbed. Upon seeing me, Maina fled away. Since Maina is my neighbour, I could recognize him. Konmai showed me the injuries she had sustained in the incident. Blood was oozing out of her lips. I saw marks of biting in her neck, behind the ear. Bloo d was oozing out of Konmai’s person. The nighty she wore was soiled with mud. It was given in writing that Maina had committed the act. Konmai took us along and showed Maina’s room. The Villager convened an extra judicial trial. So, lodging of the complaint got delayed. Konmai is unable to speak. She is deaf as well. (cid:29) 25. Cross Exam of PW 3, Smti. Ila Bora in the Court (cid:28)We live separately in a separate house. The other brothers are living t ogether in the same house. Kanmai used to sleep in our house. Our house and the house of the other brothers are situated in the same campus. There was only one Japana (Bamboo gate). There was bamboo fencing in the boundary. It is not a fact that I did not state before police that I was in the ve randah of the house. Kanmai came and showed me blood on her lips and showed me b y gesture of embrace to police. It is not a fact that I did not state before police that I saw the accus ed running away from the place of occurrence. It is not a fact that I did not st ate before police that Kanmai, Putuli and Ramen went to the house of the accused . It is not a fact that I stated before police that Kanmai told me by gest ure of hand that somebody caught hold of her. Kanmai is deaf and dumb. It is not a fact that I have no knowledge regarding the occurrence. It is not a fact that I am giving false evidence. (cid:29) 26. After a careful scrutiny of the statements given under Section 161 Cr.P. C. and in the court, I have no hesitation to hold that in real sense there was n o contradiction at all, at least in the testimony of PW 2. Even otherwise the te stimonies of the PWs 2,3 and 4 coupled with medical evidence it is abundantly cl ear that there was an attempt of sexual assault of the victim girl. 27. Before coming to the real question whether the conviction of the appella nt for attempted rape should be affirmed or negatived I would like to delve upon the issue of casual handling of the case by the then Investigating Officer, Add l. Public Prosecutor as well as the then Presiding Officer of the court. 28. A minute comparison of the statement given by PW 2, Smti. Putuli Bora under Section 161 and 164 Cr.P.C. as well as in the court leaves no scope of d oubt that she had witnessed the incident of molestation. Just because PW 2 did not say before the Investigating Officer that she had seen the incident with he r own eyes the witness should not have been branded as a hearsay witness by the Investigating Officer. I am also of the view that when the statement of witness is available under Section 164 Cr.P.C. it can be used to remove any doubt or con fusion arising from the deposition given in the court. After going through the deposition of PW 2 given in the court, narrating the entire incident, no prudent person can come to a conclusion that PW 2 was not an eye witness to the inciden t. Even if the conducting Addl. Public Prosecutor or the judge were entertaining some doubt about the veracity of the testimony of PW 2 they could have taken th e help of the statements made under Section 161 and 164 of the Cr.P.C. 29. However, in a most casual manner the defence lawyer was allowed to cross -examine PW 2 that she was a reported witness. All the statements made before th e I.O. were re-iterated by the witness in the court. However, in the cross-exami nation PW 2 was allowed to be given suggestions that all those statements were n ot given before the I.O. The court and the lawyers cannot expect that the witnes ses will reproduce their earlier version in the court verbatim and the court dep ositions will match with earlier statements word by word. If the witnesses narra te exact story in the same sequence they cannot be looked with suspicion or bran ded as tainted witnesses. On the other hand, if the witnesses re-iterate the sam e story, with exception to missing of few words here and there, he or she is rat her considered to be a truthful witness. In my considered opinion, the testimony of a witnesses have to be taken into consideration as a whole and no witness sh ould be allowed to be confronted with his or her earlier statements, unless ther e is material contradictions or omissions. 30. In the case at hand, the learned Addl. PP remained a mute spectator when PW 2 was being confronted by the defence lawyer with her earlier statements and did not raise any objection. Since the case diaries remain in the hands of Publ ic Prosecutors it is their duty to watch the proceeding cautiously and with full attention. At the same time, the judges should also not act as a recording mach ine of the statements/depositions. When they find gross contradiction in the tes timony of a witness qua his or her earlier statements it is better that the judg es should verify the case diary to ensure that the defence suggestions regarding contradiction were genuine. In the case of Mritunjay Chakma -v- State of Tripur a; reported in 2010 (1) GLT 252, a Division Bench of this court observed that (cid:28)t he defence counsel would be well advised in the case of a positive contradiction to get the relevant portion marked tentatively (cid:29). Had this observation been fol lowed the contradictions would not have been recorded, during the cross-examinat ion of the I.O. The case also reveals that the learned Addl. Public Prosecutor not only 31. remained silent during the cross-examination of prosecution witnesses but he had practically left the case at the mercy of the Investigating Officer as well. Sri Anadi Das (PW 7), who had recorded the statement of witnesses blindl 32. y nodded the suggestions given by the learned defence counsel virtually declarin g that PW 2 Smti. Putuli Bora did not see any part of the incident. It appears t o me that the I.O. agreed to the defence suggestions in the cross-examination wi thout opening the case diary. I have already noted earlier that I do not find an y fundamental omission or contradiction in the testimony of PW 2 that was given under Sections 161 and 164 of the Cr.P.C. It is true that in her chief examinati on in the court PW 2 deposed that she was sitting in the verandah but in the cross-examination PW 2 admitted that at the relevant time she was washing utensi ls near a well. The position of the well could have been clarified had it been s hown in the sketch map. However, the sketch was so perfunctorily done by the I.O that it is a no help to decide the case. However, from the deposition of PW 2 i t is clear that the well is situated in front of the house and the incident had also taken place in the front of the house. Despite that the I.O. parried defe nce suggestions as a dumb witness without consulting the case diary. In view of the gravity of the offence the I.O. should have been more alert in the cross-exa mination. However, it was otherwise. Hence, his conduct is highly reprehensible and needs administrative action. 33. The Code of Criminal Procedure was once amended in the year 2005 vide Am endment Act No.25 of 2005. While amending the Cr.P.C. ,the Parliament inserted S ection 25-A for establishment of a Directorate of Prosecution in each and every State. The Amendment Act received President’s assent on 23.6.2005 and it was als o notified in the Gazette on the same date. Nearly 8(eight) years have passed si nce then but the intention of the Legislature has not been fulfilled by the Stat e of Assam. The Government has though created a post and has appointed a Directo r of Prosecution in the year 1999 no sincere effort has been made to make this a gency effective. To my information the Director of Prosecution, Assam appears to have submitted a scheme to the Commissioner and Secretary, Home Department in the year 2008 for establishment of full-fledge d Directorate by way of constituting a cadre of Public Prosecutors, Addl. Public Prosecutors and Assistant Public Prosecutors and other Officers of the Departme nt by way of enacting statutory Rules. In other words, the Director has suggest ed the Home Department to enact the Rules under Article 309 of the Constitution of India for appointment of Public Prosecutors etc. on regular basis on specifi ed pay scales and a draft Rules has also been submitted. The Director also opine d that regular training to the Public Prosecutors etc. would go a long way in th e improvement of the quality of the prosecution and also to handle the pendency of the criminal cases smoothly. Since the scheme was submitted in the year 2008 and since the scheme has not been acted upon it can be presumed that the scheme has been buried in the heaps of unimportant files. The Law Commission of India h ad suggested the Government in its 197th report that the proposed amendments reg arding constitution of Regular Cadre of Prosecuting Officers shall be constitute d by the State Governments within a time frame of six months from the date of am endment of Criminal Procedure Code. Almost eight years have passed after insert ion of Section 25-A in the Cr.P.C. the intention of the Parliament is yet to be fulfilled by the State of Assam. 34. To the information of the court a good number of States had already crea ted separate Directorate of Prosecution even prior to the amendment of the Cr.P .C. and they are appointing Public Prosecutors under specific recruitment Rules. Any law is enacted or amended with certain objectives. It is a common grievance that certain departments do not religiously follow the law. However, it is a ca se of not fulfilling the desire of the Parliament for establishing a full-fledge d Directorate of Prosecution by the State Government. Had the Government of Assa m any reservation regarding insertion of Section 25-A it could have issued an am endment to that effect. However, the Government does not appear to be averse to the enactment of Section 25-A, since it has already created a post of Director o f Prosecution as back as in the year 1999, albeit, without any recruitment or se rvice Rules. The only thing that remains to be done is to notify the Recruitment Rules for regular appointment of Public Prosecutors etc. I do not find any just ified reason for withholding the draft Rules by the Government. Keeping in mind the low conviction rate and to meet the challenge of cyber crimes etc and also t o face huge pendency in the courts it is in the interest of justice delivery sys tem that competent Public Prosecutors, who can render dedicated service and work in the court as truly professionals, be appointed by the Government and this ca n be achieved only if Public Prosecutors etc. are appointed on the basis of a Re cruitment Rules. I hope and trust that good sense would prevail upon the Governm ent to notify the Rules at an early date in the greater interest of public at la rge. 35. Public Prosecutors are appointed by the Central and State Governments in consultation with the respective High Courts and Sessions Judges. The procedure for appointment of Public Prosecutors is laid down under Section 24 of the Cr.P .C. Section 24 (4) mandates that the District Magistrate shall prepare a panel o f names of persons in consultation with the Sessions Judge for appointment of Pu blic Prosecutors and Additional Public Prosecutors for the District. Subsection (5) mandates that no person shall be so appointed who name does not figure in th e panel. The law also requires that only names of those lawyers should be for warded to the Government who are found to be fit for their appointment as Public Prosecutors and Additional Public Prosecutors. In the absence of any guideline from the Government or from the High Court the recommendations are made virtuall y on the subjective satisfaction of the District Magistrate and the Sessions Jud ge. Some time, the Government even ignores the recommendation of the Sessions Ju dge and appoints Public Prosecutors and Additional Public Prosecutors on their o wn. To check any arbitrary appointment of the lawyers to the post of Public Pros ecutors and Additional Public Prosecutors and also to ensure that recommendation s are made by the Sessions Judges purely on merit it is desireable that the sele ction of the Public Prosecutors should be made objectively. Hence, I request th e Hon’ble the Chief Justice of the Gauhati High Court to issue certain guideline s to the Sessions Judges for this purpose. 36. Coming to the merit of the case, I agree with the learned counsel for th e appellant that conviction of the appellant for attempted rape was not proper. Attempt to commit an offence is synonymous for preparation to commit an offence. The preparation is a mental act with follow up some action to do a particular t hing. In order to convict a person for an attempt to commit a crime it must be s hown by the prosecution that the offender had an intention to commit the said cr ime and, secondly, some overt act in that regard must also have been done. In ot her words, if an offender executes one part of the offence and fails to complete the offence it would amount to an attempt to commit the said offence. 37. In the case at hand neither the accused had undressed him nor disrobed t he victim girl. The record also reveals that the victim was only grabbed and kis sed and the entire incident was over within minutes. Besides this, the victim wa s grabbed in an open courtyard where there was little scope for indulging in any sexual intercourse. In the facts and circumstances of the case I hold that it w as not proper for the trial court to convict the accused under Section 376 r/w S ection 511 of the IPC. Hence, conviction is altered and reduced to Section 354 I PC, i.e. for outraging the modesty of a woman with the use of criminal force. 38. So far as the conviction of the appellant under Section 447 of the IPC I find no difficulty to affirm the same since the evidence of the witnesses cle arly indicate that the accused had committed the offence just inside the gate of the informant. In other words, the victim was very much inside her compound in the process of closing the gate. In other words, the victim had not gone out of her compound to acquit the appellant from the offence under Section 447 of the I PC. 39. With regard to the conviction of the appellant under Section 323 of the IPC I find sufficient evidence in this regard. All the material witnesses viz, P Ws 2, 3 and 4 have deposed that they saw injury on the cheek and oozing out of b lood from the mouth of the victim girl. 40. The fact of sustaining injuries has been corroborated by the doctors, th ough with different findings. Doctor Atul Chandra Pator had first examined the v ictim girl on 24.7.2005 and found tenderness all over the body, except any exter nal injury. The victim girl was produced before him by the family members on the ir own. Subsequently, the Investigating Officer of the case again produced the v ictim girl before Dr. Nazrul Islam in the Civil Hospital at Nagaon on 8.8.2005. This doctor found two numbers of partially healed abrasion with scab formation o ver left knee and some abrasion on the back of the abdomen. In the opinion of th e doctor the injuries might be one week old. Though both the doctors noticed som e injuries on the person of the victim girl but I fail to understand as to how t he doctor Atul Chl Pator could not detect abrasions on the knee and on the back of the abdomen. Be that as it may, I am not taking any serious view of the discr epancy. Dr. Pator must not have taken abrasion injuries seriously since he was n ot reported about any police case. As a whole, medical evidence corroborates the prosecution case that the victim girl must have sustained injuries during scuff le with the accused to rescue herself. 41. Mr. Bora, learned counsel for the appellant raised an issue of identific ation of the offender. According to them, the victim girl and other witnesses di d not find the accused at his home and, as such, it was not conclusively proved that the accused/appellant was the actual person, who had grabbed the victim gir l. According to the learned counsel, the room, which was allegedly pointed out b y the victim girl might have been occupied or used by any other family member. I n my view, this argument is totally unacceptable in the absence of any contrary evidence that the accused was not staying in the house and the room, which was p ointed out by the victim girl to her family members. Besides this, there is no e vidence on record to show that the victim girl had any animosity to falsely impl icate the appellant in the aforesaid offence. The above apart, the identification of the appellant was also proved b 42. y the prosecution on the basis of TIP report of a learned Judicial Magistrate. T he learned Judicial Magistrate (PW 6) has proved the TIP report as Exbt.5. In hi s oral evidence, the learned Magistrate has narrated the procedure adopted by hi m in holding the TIP. It is true that there was long gap from the date of the of fence to the date of the TIP. However, this cannot be a sole ground to reject th e TIP report in the absence of any evidence that the accused was first shown to the victim girl. Even otherwise, the accused was known to the victim girl and TI P was held only as a matter of precaution since the victim was a deaf and dumb g irl. 43. PWs 2, 3 and 4 have categorically deposed that soon after the incident, the victim girl took them to the house of the accused and pointed out the bedroo m where the accused used to live. 44. Referring to the judgment of the Hon’ble Supreme Court, rendered in the case of Caetano Piedade Fernandes and another -Vs- Union Territory of Goa, Daman and Diu, Panaji, Goa; reported in (AIR 1977 SC 135) and another judgment from the Kerala High Court in the case of Kadungoth Alavi -Vs- State of Kerala; repor ted in 1982 Cri LJ 94, the learned counsel for the appellant submitted that th e TIP report has no evidentiary value if the witnesses of TIP is not examined in the court as it deprives the accused to confront the witnesses. The cited autho rities are based on different facts and not arising out of a case of deaf and du mb witness. In the case before me, the victim was a deaf and dumb girl and, de spite best efforts, her statements could not even be recorded by the I.O. and th e learned Judicial Magistrate with the help of an expert in sign language. Even otherwise, the prosecution examined the learned Judicial Magistrate to prove the TIP. Strangely, the I.O. was not given any suggestion in the cross-examination that the accused was shown to the victim girl before holding Test Identification Parade. Hence, the submission of the learned counsel regarding non-admissibilit y of the TIP report is rejected. 45. So far as the sentences of the appellant under Sections 323 and 447 of t he IPC are concerned I find that the accused has been punished with a paltry amo unt of fine of Rs. 500/- (Rupees five hundred) only for each offence. Hence, it does not warrant any interference. 46. As noted earlier, I have converted the conviction of the appellant from Sections 376/511 of the IPC to Sections 354 of the IPC this court has to reduce the sentence on this count. At the time of commission of the offence Section 354 of the IPC provided two years imprisonment with or without fine. However, after the amendment of Section 354 of the IPC, by way of Amendment Act No. 13 of 2013 , the law prescribes the minimum sentence of one year imprisonment, which may ex tend to 5 (five) years and fine is also mandatory. 46.1 Keeping in mind that the accused had just grabbed the victim in the cour tyard while she was closing the gate without any intention of sexual assault and also considering the fact that the accused was a young boy of 25 years I take a lenient view. Accordingly, the appellant is sentenced to undergo Rigorous Impri sonment for one year and also to pay fine of Rs. 10,000/- (Rs. Ten thousand only ) for his conviction under Section 354 of the IPC and in default of payment of f ine the accused/appellant shall undergo further Rigorous Imprisonment for three months. Needless to say that the period of custody, already undergone by the app ellant during the investigation and trial, shall be set-off under Section 428 of the Cr.P.C. If the fine amount is deposited in the court the same shall be paid to the victim girl as compensation under Section 357 of the Cr.P.C. 47. With the modification in the conviction of the appellant under Sections 376/511 IPC and the sentence as indicated in the previous paragraphs, the appeal stands dismissed. The appellant is directed to surrender in the court of learne d Addl. Sessions Judge, Nagaon immediately to serve out the remaining period of sentence. 48. The Registry is directed to return the LCRs with a copy of this judgment . On receipt of the record, the learned trial court shall issue modified custody warrant, after taking the convict in the custody. 49. The Registry is further directed to transmit a copy of this judgment to the Chief Secretary, Government of Assam for taking necessary steps for enactmen t of the Recruitment Rules for appointment of the Public Prosecutors and other O fficers of the Directorate of Prosecution. A copy of this judgment shall also be endorsed to the Director General o 50. f Police, Assam for taking appropriate disciplinary action against the I.O. Shri SI Anadi Das for his reprehensible conduct, while giving depositions in the cou rt. 51. The Registry is further directed to place a copy of this judgment before Hon’ble the Chief Justice, who may consider issuing appropriate guidelines to t he Sessions Judges for recommending the names of the Public Prosecutors, Additio nal Public Prosecutors and Assistant Public Prosecutors. His Lordship may also take-up the matter in the judicial side in the light of the observations made in paragraphs 33 to 36 in this judgment.