Abul Hussain Vs State of Assam

Heard Mr. A. Choudhury, learned counsel appearing for the appellant. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor appearing for the State respondent.

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2] This appeal is presented against the judgment & order dated 26.03.2014 passed in Sessions Case No. 271/2012 by the learned Sessions Judge, Goalpara, Assam, (hereinafter referred to as the “trial court”) whereby the accused/appellant was convicted under Section 341/342/354 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) and sentenced to undergo 2 years simple imprisonment and a fine of Rs. 5,000/-, in default to simple imprisonment for 6 (six) months under Section 354 of the IPC.

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3] The case of the prosecution is that on 28.05.2012, PW-2 lodged an FIR alleging, inter alia, that his daughter, who was aged 14 years at that time, while returning home from her school with her classmates, i.e., PW-3, PW-4, and PW-5, and upon reaching near the house of the accused/appellant at Bahati N.C., the accused/appellant, who was sitting under an overhanging bamboo structure by the side of his house with a dagger in his hand, forcibly dragged

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her by holding her hand to his dwelling house and, after shutting the door behind, tried to rape her forcibly. The case was accordingly registered under Section 341/342/384/376/511 of the IPC. Thereafter, an investigation was done by the investigating officer, i.e., PW-8, and upon completion of the investigation, a charge-sheet was submitted under the same sections. Thereafter, the trial court framed charges under Sections 341/342/384/376, r/w Section 511 of the IPC against the accused/appellant, to which he pleaded not guilty and claimed to be tried.

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4] During the trial, the prosecution examined 8 (eight) prosecution witnesses, including the victim, her friends, and the investigating officer. After the conclusion of the prosecution evidence, the statement of the accused/appellant under Section 313 of the Cr.P.C. was recorded, wherein all the incriminating circumstances were put to him, to which he generally denied but did not offer any explanation whatsoever. He further did not adduce any defence witness. Upon completion of the trial, the trial court convicted the accused/appellant. Situated thus, the present appeal has been preferred.

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5] Mr. A. Choudhury, learned counsel appearing for the appellant, does not seriously challenge the conviction on merits; however, he submits that the sentence of 2 years simple imprisonment is excessive and disproportionate to the nature and circumstance of the offence.

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6] Mr. M. P. Goswami, the learned Additional Public Prosecutor appearing for the State respondent, submits that with the maximum sentence being 5 years, the sentence of 2 years simple imprisonment is proportionate to the nature and the circumstances of the offence proved.

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7] I have given my prudent consideration to the arguments advanced by learned counsels for both the parties and have also perused the material available on record.

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8] It appears that PW-1, i.e., the victim, deposed before the trial court that on the day of the occurrence, after the school hour was over, she, along with PW-3, PW-4, and PW-5, was returning back home, and when they reached near the house of the accused/appellant, the accused/appellant, all of a sudden armed with a dagger, came over there and grabbed her hand, and when she told him to leave her hand, he refused and dragged her towards his house. She further deposed that while the accused/appellant was trying to forcefully drag the victim, PW-4 tried to raise his strong protest; however, the accused/appellant did not listen to him. She further deposed that after the accused/appellant shut the door by forcibly taking her inside, PW-5 banged the door repeatedly to open it, but the accused/appellant paid no heed to his request. She further stated that the accused/appellant threatened her inside the room, displaying a dagger, and tried to rape her but did not succeed. She also stated that when she raised a loud hue and cry, the neighbouring people came to the spot, and by that time the accused/appellant had robbed her earring, bracelet, and one silver chain. She further

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testified that when the neighbouring people came to the spot, the accused/appellant was forced to open the door, and then she came out crying. Thereafter, the people took her to her uncle’s house, named Abdul Hussen.

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9] It appears that PW-3, PW-4, and PW-5, who were along with PW-1 at that time, support and corroborate the aforesaid testimony of PW-1. It further appears that the PW-1 has consistently, from the beginning, stated that the accused/appellant had forcibly taken her to his house with a dagger in his hand. It appears that her above testimony is fully corroborated by PW-3, PW-4, and PW-5.

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10] Apt at this stage to refer to Section 354 of the IPC, which reads as under:

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“Section 354- Assault of criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine].”

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11] Though what constitutes an outrage to female modesty is nowhere defined in the IPC; however, the essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue that attaches to a female owing to her sex. The act of dragging a woman by forcibly holding her hand and pulling her hair, that too with a dagger in the hand, is sufficient enough to outrage the modesty of a woman. The

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fact that the accused/appellant dragged her to his house and shut the door is also sufficient to prove his culpable intention.

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12] It appears that the trial court, after assessing and analyzing the evidence, more particularly the testimony of PW-1 having been corroborated by PW-4 and PW-5, convicted the accused/appellant under Sections 341/342/354 of the IPC. This court finds no infirmity or illegality in the aforesaid conviction.

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13] As regards the argument of Mr. A. Choudhury, learned counsel for the appellant to the sentence awarded, it appears that the trial court has made the following observations while hearing the convict on the question of sentence, which reads as under:-

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“36. Heard the convict on the question of sentence. He remains remorseless and has defiantly stated that he is ready to face any punishment this court deems fit and proper under the facts and circumstances of the case. I have considered his submission in the light of entire case record and have found that this accused deserves no leniency from this court as he, in a broad day light, caught the hand of the victim on the village road showing a dagger, forced her inside his house and shut the room and this lowered her prestige and dignity in the eye of the entire village in consequence of which she was forced to drop her educational career midway and this further forced her parents to give her in marriage at premature age. Now, she is a married woman and because of this incident, she has to suffer a lot. Having found no mitigating circumstance in favour of the aforenamed accused, this court on convicting the accused u/s 341/342/354 IPC is hereby pleased to impose jail term upon him finding this accused unfit one to grant any salutary benefit under the provision of Probation of Offenders Act. Accordingly, the accused is being convicted under the aforementioned penal provision is hereby sentenced to simple imprisonment for two years and a fine of Rs.5,000/-, in default to pay the find amount,

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to suffer simple imprisonment for another period of six months for commission of offence u/s 354 of IPC. This court, in view of this pronouncement of sentence, does not deem it proper to impose any other penal sentence upon this accused.”

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14] Considering the nature and circumstance of the offence, I do not see any reason to differ with the sentence imposed by the trial court. As such, the same is neither excessive nor disproportionate to the nature and circumstances of the offence proved. Accordingly, the criminal appeal stands rejected.

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15] Resultantly, the judgment & order passed by the Court of Sessions Judge, Goalpara, in Sessions Case No. 271/2012, stands affirmed.

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16] The criminal appeal is accordingly dismissed.

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17] The accused shall surrender to serve the remaining sentence, if any.

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18] Return the trial court record (TCR).

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JUDGE

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Comparing Assistant