present hon’ble mr. justice b d agarwalghconline.gov.in/judgment/crla1252010.pdf · appellant and...

Crl. Appl. No. 125 of 10 of 27

IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH)

Criminal Appeal No. 125 of 2010

Pran Krishna Bora Son of Sri Dharani Kt. Borah, Chakalaghat, PS. Jajori, District-Nagaon,

……………… Appellant

-Versus-

The State of Assam, …………… Respondent.

PRESENT HON’BLE MR. JUSTICE B D AGARWAL

Advocate for the appellant : Mr. AM Bora, Mr. S. Bordoloi Mr. D. Gogoi, Advocates Advocate for the respondent: Mr. Z. Kamar, PP, Assam.

Ms. B. Bhuiyan,

Addl. PP, Assam.

Date of hearing : 24.04.2013, 08.05.2013

Date of Judgment : 29. 05. 2013

JUDGEMENT AND ORDER (CAV) This case has assumed importance not only due to the

gravity of the offence 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.


2. The appeal is directed against the judgment dated

30.6.2010 passed by the 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 sentence the accused has preferred this appeal.

3. I have heard Mr. AM Bora, learned counsel for the

appellant and Mr. Z. Kamar, 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 of 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 attempt to sexually molest her.


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 accused 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-Charge of Jajori police station at the relevant

time. After visiting the site of incident 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 examined by Doctor Nazrul Islam, M & H.O.-(I) of

B.P. Civil Hospital, Nagaon. Since the 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 supervision of a Judicial Magistrate. The statement

of few witnesses were also obtained under Section 164 of the

Criminal Procedure Code. Prior to that the accused himself

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, Doctor 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 then conducting Presiding Officer and also

the then Public Prosecutor. PWs 2, 3 and 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 Investigating Officer were

also examined twice in the court as the original T.I.P. report

was not exhibit earlier. This was the second lapse in the

prosecution.

8. After the trial was over, the appellant was convicted for

various offences, as noted earlier.

9. Mr. Bora, learned counsel for the appellant strongly

argued that there was 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 entitled to be acquitted

from all the offences. The learned counsel for the appellant

also argued that the impugned judgment is liable to be set

aside inasmuch as the 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

accepted as legal evidence.

10. On the other hand, the learned PP submitted that there

are sufficient evidence to at least convict the appellant for


outraging the modesty of a woman (Section 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 of the Cr.P.C. can be used only for a

limited purpose for contradicting the witnesses 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 taken into consideration for

corroboration of other evidence in the court.

11. I find that the entire case revolves around the

testimonies of PWs 2, 3 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

and victim went to close the gate of the compound. At that

moment the accused embraced the victim girl from backside

and fell her down on the ground and thereafter mounted

over her body. PW 2 has further deposed that as a result of

bite on the cheek blood had oozed out. The witness further

deposed that seeing the incident she immediately called her

brother Tularam Bora and Jatin Bora and by the time her

brothers proceeded towards the gate the accused had fled

away. PW 2 has further deposed that thereafter her brothers

chased the accused along with the victim 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 occurrence 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 implicate

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 varanda 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.

According to PW 3, the victim girl also narrated the incident

by gesture that she was grabbed by a person. The witness has

further claimed that she showed the accused running

through the courtyard. Thereafter, the victim girl

accompanies other family 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 accused 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 clarified 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 before the I.O. that at the relevant time she

was in the varanda and she did not see any injury on her lips


or narrated the incident by gesture. PW 3 further denied that

she did not state before the I.O. that she saw the accused

running away from the place of occurrence and that after the

incident the victim girl accompanied 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 saw 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 girl only half feet inside the gate and by that

time PWs 2 and 3 had already arrived 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.

17. PW 1 is also the brother of the victim girl. He was not

at home on the relevant 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

attempt 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 decided 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 what had exactly

happened. Hence, the testimony of PW 5 is also left out of

consideration.

19. Since the statements made before the learned Judicial

Magistrate has corroborative 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 also

necessary to produce her statement given before the I.O. U/s

161, which are as below:

20. Statement of PW2, Smti. Putuli Bora U/s 161 CrPC.

(English rendering)

“It was drizzling around 10-30 PM 22.07.05.

Having had her dinner 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 came 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 gestures that a stout youth had grabbed her.

She went to Maina’s house along with elder brother

during the night itself and pointed out Prankrishna’s

bedroom.”

21. Deposition of PW 2 Putuli Bora U/s 164 CrPC in the

court. (English version

“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

incident took place about a year ago. Around 10.30

p.m. on the night of the incident it had been raining.

Kanmai Bora had gone to close the gate. I had been

sitting at the verandah. About that time Prankrishna

came from behind, grabbed Kanmai and felled her.

After that, Pran Krishna climbed over her. The accused

bit her 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 to the gate and then ran to the accused persons

house, chasing him. We did not find the accused at

home.

It was scheduled to compromise the issue the

next day. Members of the public 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 social 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 dumb 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”.

22. Cross Exam of PW 2 Putuli Bora in Court

“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

utensils on the bank of the front well. That day also we

washed the utensils. (Actually) I washed the utensils.

A PWD road passes by the front of our house. It runs

from Demow to Raidingiya. Our house is in the south

of the road. At the time of 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 at 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 Kanmai from behind; fell her down

and mounted over her; bit her in the cheek, causing

blood to flow out; that I had kept watching; that I


called my brothers Tolaram Bora and Jatin Bora; that

we had proceeded towards the gate whereupon the

accused 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

reached. It is not true that I did not say this to the

police. It is also not true that 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 had

not seen the incident. It is not true that no incident had

taken place that day. It is not true that Kanmai had

not pointed at the accused.”

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 Section 161 of

the Cr.P.C. The I.O. (PW 7) admitted the contradictions of

PW 2 in the following words.

“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 gone 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

grabbing her from behind; that later he had got on to


Kanmai’s abdomen; that he had bite her lips, causing

these to bleed. The witness did not tell me that she had

seen 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 being looked for there. None of the witnesses

told me that there had been meetings in connection

with the incident.

The witness did not tell me that along with

Kanmai and the other witnesses, she had gone to the

accused persons house and had called Maina.”

“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 Kanmai had gone to the house of the accused. She

also did not tell me about Kanmai’s saying through

gesticulations that the accused had grabbed her”

24. Statement U/s 164 Cr.P.C. of PW 2, Smt Putuli Bora.

(English rendering)

“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 to

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. The lamp

(electric) of our verandah was burning and the light (of

the lamp) covered 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. Blood 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.”

25. Cross Exam of PW 3, Smti. Ila Bora in the Court

“We live separately in a separate house. The

other brothers are living together 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 verandah of the house. Kanmai came

and showed me blood on her lips and showed me by

gesture of embrace to police.

It is not a fact that I did not state before police

that I saw the accused running away from the place of

occurrence. It is not a fact that I did not state 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 gesture 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.”

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 no contradiction at all, at

least in the testimony of PW 2. Even otherwise the

testimonies of the PWs 2,3 and 4 coupled with medical

evidence it is abundantly clear that there was an attempt of

sexual assault of the victim girl.

27. Before coming to the real question whether the

conviction of the appellant 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,

Addl. 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 doubt 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 her 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 confusion 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 incident. 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 the 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 the I.O. were re-

iterated by the witness in the court. However, in the cross-

examination PW 2 was allowed to be given suggestions that

all those statements were not given before the I.O. The court

and the lawyers cannot expect that the witnesses will

reproduce their earlier version in the court verbatim and the

court depositions will match with earlier statements word by

word. If the witnesses narrate exact story in the same

sequence they cannot be looked with suspicion or branded as

tainted witnesses. On the other hand, if the witnesses re-

iterate the same story, with exception to missing of few

words here and there, he or she is rather 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 should be allowed to be confronted with his

or her earlier statements, unless there 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

Public 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 machine of the

statements/depositions. When they find gross contradiction

in the testimony of a witness qua his or her earlier statements

it is better that the judges should verify the case diary to

ensure that the defence suggestions regarding contradiction

were genuine. In the case of Mritunjay Chakma –v- State of

Tripura; reported in 2010 (1) GLT 252, a Division Bench of

this court observed that “the defence counsel would be well

advised in the case of a positive contradiction to get the

relevant portion marked tentatively”. Had this observation

been followed the contradictions would not have been

recorded, during the cross-examination of the I.O.

31. The case also reveals that the learned Addl. Public

Prosecutor not only 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.

32. Sri Anadi Das (PW 7), who had recorded the statement

of witnesses blindly nodded the suggestions given by the

learned defence counsel virtually declaring that PW 2 Smti.

Putuli Bora did not see any part of the incident. It appears to

me that the I.O. agreed to the defence suggestions in the

cross-examination without opening the case diary. I have

already noted earlier that I do not find any 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 examination 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 utensils

near a well. The position of the well could have been clarified

had it been shown 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 it 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 defence 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-examination. 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 Amendment Act No.25 of 2005. While

amending the Cr.P.C. ,the Parliament inserted Section 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 also notified in the Gazette on the

same date. Nearly 8(eight) years have passed since then but

the intention of the Legislature has not been fulfilled by the

State of Assam. The Government has though created a post

and has appointed a Director of Prosecution in the year 1999

no sincere effort has been made to make this agency 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-fledged Directorate by way of

constituting a cadre of Public Prosecutors, Addl. Public

Prosecutors and Assistant Public Prosecutors and other

Officers of the Department by way of enacting statutory

Rules. In other words, the Director has suggested 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 specified pay scales and a draft Rules

has also been submitted. The Director also opined that

regular training to the Public Prosecutors etc. would go a

long way in the 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 had

suggested the Government in its 197th report that the

proposed amendments regarding constitution of Regular

Cadre of Prosecuting Officers shall be constituted by the

State Governments within a time frame of six months from

the date of amendment of Criminal Procedure Code. Almost

eight years have passed after insertion 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 created 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 case of not

fulfilling the desire of the Parliament for establishing a full-

fledged Directorate of Prosecution by the State Government.

Had the Government of Assam any reservation regarding

insertion of Section 25-A it could have issued an amendment

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 of Prosecution as back as in

the year 1999, albeit, without any recruitment or service

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 justified 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 to face huge pendency in the courts

it is in the interest of justice delivery system that competent

Public Prosecutors, who can render dedicated service and

work in the court as truly professionals, be appointed by the

Government and this can be achieved only if Public

Prosecutors etc. are appointed on the basis of a Recruitment

Rules. I hope and trust that good sense would prevail upon

the Government to notify the Rules at an early date in the

greater interest of public at large.

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 of names of persons in consultation

with the Sessions Judge for appointment of Public

Prosecutors and Additional Public Prosecutors for the

District. Subsection (5) mandates that no person shall be so

appointed who name does not figure in the panel. The law

also requires that only names of those lawyers should be

forwarded 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 virtually on the subjective satisfaction of the

District Magistrate and the Sessions Judge. Some time, the

Government even ignores the recommendation of the

Sessions Judge and appoints Public Prosecutors and

Additional Public Prosecutors on their own. To check any

arbitrary appointment of the lawyers to the post of Public

Prosecutors and Additional Public Prosecutors and also to

ensure that recommendations are made by the Sessions

Judges purely on merit it is desireable that the selection of

the Public Prosecutors should be made objectively. Hence, I

request the Hon’ble the Chief Justice of the Gauhati High

Court to issue certain guidelines to the Sessions Judges for

this purpose.

36. Coming to the merit of the case, I agree with the

learned counsel for the 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 thing. In order to convict a

person for an attempt to commit a crime it must be shown by

the prosecution that the offender had an intention to commit

the said crime and, secondly, some overt act in that regard

must also have been done. In other 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 the victim girl. The record also reveals that

the victim was only grabbed and kissed and the entire

incident was over within minutes. Besides this, the victim

was 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 was not proper for the

trial court to convict the accused under Section 376 r/w

Section 511 of the IPC. Hence, conviction is altered and

reduced to Section 354 IPC, 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 clearly 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

IPC.

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, PWs 2, 3 and 4 have deposed

that they saw injury on the cheek and oozing out of blood

from the mouth of the victim girl.

40. The fact of sustaining injuries has been corroborated by

the doctors, though with different findings. Doctor Atul

Chandra Pator had first examined the victim girl on 24.7.2005

and found tenderness all over the body, except any external

injury. The victim girl was produced before him by the

family members on their own. Subsequently, the

Investigating Officer of the case again produced the victim

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 over left knee and some

abrasion on the back of the abdomen. In the opinion of the

doctor the injuries might be one week old. Though both the

doctors noticed some injuries on the person of the victim girl

but I fail to understand as to how the 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 discrepancy. Dr. Pator must not have taken abrasion

injuries seriously since he was not reported about any police

case. As a whole, medical evidence corroborates the

prosecution case that the victim girl must have sustained

injuries during scuffle with the accused to rescue herself.


41. Mr. Bora, learned counsel for the appellant raised an

issue of identification of the offender. According to them, the

victim girl and other witnesses did 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 girl. According to the learned counsel, the room,

which was allegedly pointed out by the victim girl might

have been occupied or used by any other family member. In

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 pointed out by the victim

girl to her family members. Besides this, there is no evidence

on record to show that the victim girl had any animosity to

falsely implicate the appellant in the aforesaid offence.

42. The above apart, the identification of the appellant

was also proved by the prosecution on the basis of TIP report

of a learned Judicial Magistrate. The learned Judicial

Magistrate (PW 6) has proved the TIP report as Exbt.5. In his

oral evidence, the learned Magistrate has narrated the

procedure adopted by him in holding the TIP. It is true that

there was long gap from the date of the offence to the date of

the TIP. However, this cannot be a sole ground to reject the

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 TIP was held only

as a matter of precaution since the victim was a deaf and

dumb girl.


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 bedroom 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; reported in 1982 Cri

LJ 94, the learned counsel for the appellant submitted that the

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 authorities are based on

different facts and not arising out of a case of deaf and dumb

witness. In the case before me, the victim was a deaf and

dumb girl and, despite best efforts, her statements could not

even be recorded by the I.O. and the 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-admissibility of the TIP report is rejected.

45. So far as the sentences of the appellant under Sections

323 and 447 of the IPC are concerned I find that the accused

has been punished with a paltry amount 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

extend to 5 (five) years and fine is also mandatory.

46.1 Keeping in mind that the accused had just grabbed the

victim in the courtyard 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 Imprisonment 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

fine the accused/appellant shall undergo further Rigorous

Imprisonment for three months. Needless to say that the

period of custody, already undergone by the appellant

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 learned

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 enactment of the Recruitment

Rules for appointment of the Public Prosecutors and other

Officers of the Directorate of Prosecution.

50. A copy of this judgment shall also be endorsed to the

Director General of Police, Assam for taking appropriate

disciplinary action against the I.O. Shri SI Anadi Das for his

reprehensible conduct, while giving depositions in the court.

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 the Sessions Judges for

recommending the names of the Public Prosecutors,

Additional 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.

JUDGE

Upadhaya

present hon’ble mr. justice b d agarwalghconline.gov.in/judgment/crla1252010.pdf · appellant and...

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