High Court
Case Details
Crl.A. 22/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
JUDGMENT AND ORDER(ORAL) 1. nt. Also heard Mr. Z. Kamar, learned A.P.P., Assam. Heard Mr. T.H. Hazarika, learned counsel for the accused appella 2. This appeal is directed against the judgment of conviction dated 5.12.2009 passed by the learned Additional Sessions Judge (F.T.C.) Rangia in Se ssions Case No. 260 (K-R)/2009 convicting the accused appellant under Section 37 6/511 IPC and sentencing him to undergo RI for one year. Presently, the accused appellant is on bail in terms of the order passed on 17.2.2010 in Crl. M.C. No. 74/2010. Prior to that the accused appellant was in jail hajot for the period fr om 10.3.2009 to 29.4.2009. The criminal proceeding against the accused appellant stood laun 3. ched with lodging of the FIR on 6.8.2003 with Kamalpur Police Station on the bas is of which Kamalpur P.S. Case No. 150/2003 was registered under Section 376/511 IPC. 4. In due course, the police investigated the case and, on completi on of the same, charge sheet was submitted under Section 376/511 IPC. The offenc e under Section 376 IPC being exclusively triable by the Court of Session, the l earned Magistrate committed the case to the said Court and thereafter upon trans fer to the Court of the learned Additional Sessions Judge (FTC), Rangia, the tri al started. 5. As per the FIR that was filed on 6.8.2003, the accused appellant tried to commit rape on the victim girl, but he could not, as she raised hue an d cry and thereafter he fled away. During investigation, the police recorded the statement of the w 6. itnesses. Statement of the victim girl was also recorded under Section 164 Cr.P. C. During trial, prosecution examined 5 witnesses including the I/O. PW-1 is the victim girl, who in her deposition stated about the incident allegedly occurred on 4.8.2003 at about 3.30 PM. She in her deposition stated as to how the accuse d appellant came to her residence when she was alone and tried to embrace her. P W-2 is the father of the victim girl, who in his deposition stated as to how he could come to know about the incident when he was back home. PW-3 is the brother of the victim, who in his deposition stated about the alleged incident. He also stated as to how he came to know about the same on his return home and he found the victim girl weeping. PW-4 is the mother of the victim girl. She in her depo sition stated about her knowledge about the incident upon hearing from the victi m girl. PW-5 is the I/O, who in his deposition stated about the investigation an d submission of charge sheet. 7. From the evidence on record, it appears that the accused appella nt has been convicted primarily on the basis of the deposition of PW-1 i.e. the victim girl. In her deposition during trial, she stated about the visit of the a ccused appellant to her house and how he tried to embrace her. At the first inst ance, she could avoid him. Thereafter, as per her deposition, the accused appell ant forcibly took her inside the room and outraged her modesty. 8. The aforesaid statement made during trial finds support from the statement recorded under Section 164 Cr.P.C.. In the said statement also she st ated as to how the accused appellant at the first instance embraced her and trie d to outrage her modesty and also as to how she was forcibly taken inside the ho use. She in her deposition stated that when she started crying, the accused appe llant resisted gagging her mouth. It is true that there is some minor variation in the statement made by her during trial compared to the statement under Sectio n 164 Cr.P.C. So far as the other witnesses are concerned, they have deposed on the basis of the information gathered from the victim girl. 9. Mr. Hazarika, learned counsel for the accused appellant has subm itted that because of the aforesaid variation in the statement of the victim gir l made under Section 164 Cr.P.C. and during trial, the accused appellant is enti tled to benefit of doubt. On the other hand, Mr. Z. Kamar, learned P.P., Assam s ubmits that such minor variation cannot lead to the conclusion that the accused appellant is not guilty of the offence. Emphasizing the importance of the statem ent of the victim girl, he submits that she having deposed about the offence on the part of the accused appellant, her version/story cannot be disbelieved. 10. Mr. Hazarika, learned counsel for the accused appellant further submits that having regard to the punishment prescribed under Section 354 IPC co upled with the fact that the accused has already undergone about three months im prisonment the sentence be adequately reduced. The accused appellant was found g uilty under Section 354 IPC with the sentence of RI for one year. Mr. Hazarika, learned counsel for the accused appellant submits that the punishment may be sub stituted to that of penalty of fine. In this connection he has referred to the a ge of the accused appellant coupled with the fact that he has the burden of the family. It is on record that it is the accused appellant who has been maintainin g his family on the basis of his earnings with petty business. 11. Having regard to the aforesaid evidence on record, I do not find any infirmity with the findings of the learned Trial Court so far as the same r elates to conviction of the accused appellant under Section 354 IPC. The sentenc e that has been imposed is RI for one year. The accused appellant has already se rved few months in jail. Thus, in my considered opinion ends of justice would be met if the RI for one year is substituted to that of penalty of fine quantified at Rs. 20,000/-, which the accused appellant shall deposit with the Curt of the learned SDJM, Rangia on or before 31.3.2013. The said Court shall allow the vic tim girl or her authorized representative to withdraw the same upon proper ident ification. Subject to payment of the said fine, the bail bond shall stand discha rged. Needless to say that in default of payment of fine as aforesaid within the stipulated period of time he will be liable to be taken into custody for servin g the sentence that was earlier imposed by the learned Trial Court. 12. y of this judgment and order.
Decision
Criminal appeal stands disposed of. Send down the LCR with a cop