Mono Das Vs State of Assam

Heard Mr. D. Bora, learned Amicus Curiae, appearing for the appellant and Mr. R. J., Baruah, learned Additional Public Prosecutor, appearing for the State Respondents.

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2. The challenge in the present criminal appeal is the Judgment and Order dated 13.08.2013, passed by the learned Additional Sessions Judge No.IV, FTC, Kamrup, Guwahati, in Sessions Case No.30(K)/2013, convicting the appellant, herein, under Section 354 IPC and sentencing him to undergo Rigorous Imprisonment for a period of 5(Five) months and also to pay a fine of Rs.5000/-(Rupees Five Thousand), in default to undergo, further Rigorous Imprisonment for 2(two) months.

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3. The facts in brief requisite for adjudication of the issue arising in the present appeal is noticed as under:

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The mother of the victim lodged an FIR before the Officer-In-Charge Sualkuchi Police Station on 10.11.2012, and therein, stated that on 09.11.2012, at around 12.30 P.M, when her 4(four) year old daughter i.e the victim girl, could not pass urine, she had asked as to what had happened, whereupon her daughter had informed her that at about 11.00 a.m, of the date of the incident, the appellant, herein, had carried her on his arms to his house and after laying her on the bed had kissed her lips, cheek and body and had also removed her panty and by placing his penis on her vagina had pressed it.

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The police on receipt of the said FIR, registered Sualkuchi P.S. Case No.85/2012, under Section 376(2)(F) of IPC. The police upon completion of the investigation laid a chargesheet against the appellant, herein, under Section 376(F) of IPC. The charge-sheet being so filed under Section 376(F) IPC, and the same being now exclusively triable by the Court of Sessions, the matter was committed to the Court of the Sessions Judge, Kamrup, and the accused who was in the meantime arrested was under detention on the date of commitment. The learned Trial Court framed a formal charge against the appellant, herein,

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under Section 376(2)(F) of the IPC. The appellant having pleaded innocence and claimed for being tried, when the charge was read over and explained to him, trial commenced. It is to be noted that after the framing of the charge, the appellant, herein, was enlarged on bail.

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During the Trial, the prosecution side had examined as many as 7(seven) witnesses, thereafter the appellant was examined under Section 313 CrPC.

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On conclusion of the Trail, the learned Trial Court upon appreciating the evidences coming on record was pleased vide Judgment and Order dated 13.08.2013, to acquit the appellant, herein, from the charge so framed against him under Section 376(2)(F) of IPC. However, the evidence coming on record having established a charge against the appellant under Section 354 IPC, the learned Trial Court proceeded to convict the appellant, herein, under Section 354 IPC and sentenced him as noticed, hereinabove.

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Being aggrieved, the appellant had instituted the present proceedings.

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4. Mr. D. Bora, learned Amicus Curiae, appearing for the appellant, at the outset submitted that the learned Trial Court while proceeding to convict the appellant, herein, under the provisions of Section 354 IPC had not appreciated the statement made by the petitioner during his examination under Section 313 CrPC. The learned Amicus Curiae, further submitted that the appellant, herein, during his examination under Section 313 CrPC had stated that the father of the victim had taken an amount of Rs.20,000/-(Rupees Twenty Thousand) from him by saying that he would sell a plot of land to him. However, later it was learn that the appellant had sold the plot of land to someone else and on being questioned and on being required to return the said amount of Rs.20,000/-(Rupees Twenty Thousand), a quarrel ensued and instead of returning the matter, the case was instituted against the appellant, herein. However, such statement made by the Appellant, herein, was not appreciated by the Trial Court, which according to the learned Amicus Curiae has the effect of vitiating the conviction of the appellant.

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In support of the said contention, the learned Amicus Curiae had placed reliance on a decision of the Hon’ble Supreme Court in the case of Reena Hazarika Versus the State of Assam , reported in (2019) (13 SCC 289).

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5. The learned Amicus Curiae further submitted that the prosecution witnesses were all relatives and accordingly reliance cannot be placed on the evidence so adduced by them because they were interested persons in the matter. He submits that the independent witnesses who had deposed during the Trial also had enmity with the family of the appellant, herein, and had made false allegations against the appellant and as such the same would also not be permissible to reckoned.

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6. The learned Amicus Curiae, has thereafter submitted that the allegation leveled against the appellant under Section 376(2)(F) of IPC, having not been found to be established by the learned Trial Court, the same would also go to reflect that the allegations as leveled against the appellant was totally baseless and accordingly, there was no occasion for the learned Trial Court to convict the appellant, herein, under Section 354 IPC.

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7. Per contra, Mr. R. J. Barauh, learned Additional Public Prosecutor, has submitted that the evidences adduced by the PW-2 about the act committed by the appellant, herein, upon the victim girl, when viewed in the light of the evidences of the Doctor, would go to corroborate the allegation leveled against the appellant, herein. He further submits that the evidence of PW-3, PW-4 and PW-5, would go to reveal that after the said incident that had been committed upon the victim girl by the appellant, herein, was reported to the villagers, a meeting of the villagers was held and therein, the appellant, herein, had confessed about the commission of the said offence and had sought apology. He submits that the said statement when considered along with the evidences adduced by PW-1, would go to establish the fact that the appellant, herein, had assaulted the victim girl and thereby outraged her modesty.

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8. In the above premises, Mr. R. J. Barauh, submits that the conviction and sentencing of the appellant, herein, by the learned Trial Court would not mandate an interference from this Court.

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9. I have heard the learned counsel for the parties and have perused the materials available on record.

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10. For the purpose of appreciating the submissions made by the learned counsel for the parties as well as the conclusions drawn in the matter by the learned Trial Court in the impugned Judgment, the evidences coming on record during the Trial is required to be noticed.

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11. PW-1, who is the mother of the victim girl had deposed that on the date of the incident, the victim girl not being found to be in a position to pass urine after she had come back home from the house of the appellant, herein, and on being asked as to what had happened, the victim girl had stated before the PW-2 that the appellant had kissed her cheeks, abdomen and inserted his hand inside her panty, had rubbed her vagina. She further deposed that on receiving the said information she had disclosed the same to her sister-in-law and had also informed her husband about the same. She further deposed that her husband, his elder brother and some villagers went to the house of the appellant and had held a meeting, where the appellant confessed his guilt. Thereafter the FIR was lodged in the matter and the victim girl was examined by the Doctor.

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During her cross-examination, she deposed that she has not witnessed the incident and that she had lodged the FIR, since the father of the appellant, herein, had refused to take responsibility of the appellant. She further deposed that during the public meeting, people had made the appellant, herein, wear a garland of sandals. She further deposed that on an earlier occasion also, the people had made the accused wear a garland of sandals in connection with the incident of taking a girl to his house.

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12. PW-2, is the father of the victim girl. He deposed that he was reported by his wife about the act committed upon their daughter by the appellant, herein. He also deposed that when the people in the public meeting had asked about the incident the appellant, herein, had confessed his guilt. He further deposed that the father of the appellant had given 2(two) blows on the appellants back. He further deposed that the appellant was handed over to the police and the victim girl was medically examined.

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During his cross-examination, he deposed that in the public meeting, the people gathered had made the appellant wear a garland of sandals and also got his hair cut.

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13. PW-3, who is the younger brother of the father of the victim girl deposed that he came to learn about the incident from his wife, while sleeping at night. He further deposed that on the following day he informed all the villagers and a public meeting was held. He deposed that the victim girl, the next day, during the meeting had said that she was able to urinate on that day. He further deposed that the appellant, herein, had confessed to have committed the act and had offered an amount of Rs.100/-(Rupees Hundred) as token remuneration as a sign of respect and had prayed for forgiveness. The villagers in the meeting not having accepted the apology tendered by the appellant, herein, had held a further meeting and therein, also the appellant had confessed his guilt. He deposed that thereafter the police was informed and the appellant, herein, was handed over to them. During his cross-examination, PW-3 reiterated that the appellant, herein, was made to wear a garland of sandals and his hair was also cut in the public meeting held.

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14. PW-4 and PW-5, who are villagers have deposed that they had learnt about the act committed upon the victim girl by the appellant and also deposed about the confession made by the appellant during the public meeting and also the punishment imposed upon him by the public, gathered in the meeting.

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15. PW-6 is the Medical Officer of Guwahati Medical College & Hospital, Guwahati, who had examined the petitioner, herein. During her examination, she had exhibited the medical report prepared by her in the matter. The PW-2, basing on the medical report deposed that the age of the victim girl was above 3(three) years but below 5(five) years and there was no sign of a recent sexual intercourse detected on her person. It was further brought on record by PW6 that there was no evidence of injury on her private parts although there was an injury in her forearm, which was described in the medical report.

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16. PW-7, is the Investigating Officer, and after deposing with regard to the manner in which the FIR was filed, deposed that he had enquired into the matter and after examining the witnesses, he also deposed that the public handed over the appellant to the police. He further deposed that he had not seized anything from the place of occurrence, including the wearing apparel of the victim girl. He also deposed of having recorded the evidence of the

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neighbours.

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The victim girl was thereafter examined by the learned Trial Court, however, on questions being asked, it was found that the girl was unable to understand the rational questions and was also unable to give rational answers which was held due to extreme under age and accordingly, her depositions was not recorded.

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17. A perusal of the evidences coming on record on the Trial would go to reveal that the victim girl on being not be able to pass urine and on being queried about the same by her mother(PW2), she had disclosed about the act committed upon her by the appellant, herein. The medical officer examining the appellant had in her medical report exhibited, during her deposition, brought on record that there was intact redness over the hymenal orifice of the victim girl, in addition to an abrasion over her right forearm. The evidence adduced by the medical officer and the deposition of the PW-2 would go to reveal that the presence of redness in the hymenal orifice of the victim girl was caused on account of the appellant touching her vagina with his finger due to which her urination was stopped.

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18. The evidence adduced by PW-2 was not dislodged by the appellant, herein, during his cross-examination. The evidence of the PW-2 is to the extent that the appellant had kissed the cheek and abdomen of the victim girl and thereafter had inserted his hand inside her panty and rubbed her vagina. The said evidence would not bring home the charge under Section 375 IPC against the appellant, herein. However, the evidence coming on record, more particularly that of the PW2 and the medical evidence would bring to the forefront a charge under Section 354 IPC being proved beyond reasonable doubt against the appellant, herein.

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19. Having drawn the said conclusion, basing on the evidence coming on record, in the enquiry, this Court would now examine the conclusions drawn by the learned Trial Court, vide the Judgment dated 13.08.2013. The learned Trial Court upon appreciating the evidences coming on record had drawn the following conclusions ;

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“29. From the unshaken evidence of the P.W.s it is established that the accused had put his finger into the vagina of the victim who was 4 years of age. The witnesses had not stated that there was sexual

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intercourse by the accused. Therefore on relying aforesaid ruling and the fact that the accused touched her vagina with his finger, I am of the view that the act of the accused does not amount to an offence U/S 375 IPC but, it amounts to an indecent act outraging the modesty of an woman attracting the Ingredients of Section 354 IPC. In respect of question as to whether modesty of little aged female child could be outraged, the Apex Court in the case of Punjab Vs. Major Singh, AIR 1967 SC 63 held as follows:-

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"A question arose whether a female child of a seven and a half months could be said to be possessed of 'modesty' which could be outraged. In answering the above question Mudholkar, J, who along with Bachawat, J spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of section 354, IPC. Needless to say, the "common notions of mankind" referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J) observed that the essence of a woman's modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of 'modesty' and the interpretation given to that word by this Court in Major Singh's case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman."

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Considering all aspects, I am of the view that the accused outraged the modesty of the victim in the manner as has been described by the P.Ws and the prosecution has been able to prove its case beyond reasonable doubt against the accused for the offence punishable U/S 354 IPC.

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In the aforementioned facts and circumstances of the case and the nature of offence committed by the accused being a full grown person of 22 years of age on a minor aged about 4 years might be traumatized due to such incident at her very tender age. Hence, in my opinion he cannot be given the benefit of probation.

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Considering all aspects the court is of the view that the prosecution is able to prove its case beyond reasonable doubt against the accused. Hence the accused is convicted U/S 354 of IPC.”

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Upon drawing the said conclusions, the learned Trial Court proceeded to convict and sentenced the appellant, herein, as under;

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“34. Considering all aspects, I sentence the convict Mono Das to undergo rigorous imprisonment (R.I.) for five months and also to pay a fine of Rs. 5,000/- (Rupees Five Thousand) i/d to undergo further rigorous imprisonment (R.I.) for 2 (Two) months for the offence punishable U/S 354 PC. The fine amount on realization be paid to the victim. The period of detention the accused has already undergone shall be set off as per provision of Section 428 Cr.P.C.”

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20. On perusal of the conclusions drawn by the learned Trial Court, this Court is of the considered view that the same are reasonable and based on the evidences coming on record during the Trial against the appellant, herein, and cannot be said to be erroneous in any manner.

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21. At this stage, this Court would consider the submission made by the learned counsel for the appellant that the Trial Court while drawing its conclusions in the matter had not taken into consideration the statement made by him during his examination under Section 313 CrPC. The said contention is with regard to the statement made by the appellant against the question no.12 when he was asked as to whether he has any other thing to say in connection with the case. The appellant had given the following reply in response to question no.12 put to him.

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“Pradip Das took an amount of Rs. 20,000/ from us saying that he would sell a plot of land to us. But later when we learnt that Pradip Das was about to sell that plot of land to someone else, we questioned him and asked him to return the said amount of Rs. 20,000/. But instead of returning the said amount of money, they quarrelled with us and upon lodging this case against us on false grounds, they sold the plot of land to some other person and left the place. I am innocent.”

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22. A perusal of the answer given by the appellant to question no.12, would go to reveal that false case was hoisted upon him by the family of the victim girl on account of the fact that the father of the victim girl who had taken an amount of Rs.20,000/- (Rupees Twenty Thousand) from him for selling of a plot of land to the family of the appellant, had sold the said land to some other person and had not returned the said amount of Rs. Rs.20,000/(Rupees Twenty Thousand). While the said statement was so made by the appellant during his examination under Section 313 CrPC, this Court on a perusal of the cross-examination as conducted by the appellant of both PW1 and PW2, finds that he had not conforted them with the said issue.

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23. Accordingly, this Court is of the view that for the statement made by the appellant against question no.12 during his cross-examination under Section 313 CrPC, no foundation was laid thereof, while examining prosecution witnesses more particularly the father and the mother of the victim girl, as such the said stand taken by the appellant during his examination under Section 313 CrPC has to be held to be a clearly an afterthought and would not mandate a consideration in the matter. The said aspect was considered by the learned Trial Court and the same was rejected by holding that the said plea was not proved by the adducing evidence and the same was also not put to be prosecution witness.

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24. Accordingly, this Court is of the considered view that the decision of the Hon’ble

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Supreme Court in the decision of Reena Hazarika (supra) would not advance the case of the appellant, herein.

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25. Having drawn the above conclusion, this Court finds that the incident, in question, had occasioned in the year 2012, and about 13 years have passed, thereafter. The materials on record reveals that the appellant, herein, had undergone detention for 89(eighty nine) days. The provisions of Section 354 IPC as it stood prior to its amendment in the year 2013, i.e. prior to 03.02.2013, had provided for imprisonment for either description for a term which may extend to 2(two) years or with fine or with both.

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26. In view of the long elapse of time since the date of commission of the offence and the fact that the appellant, herein, had moved on in his life, this Court is of the considered view that the sentencing of the appellant by the learned Trial Court would mandate a modification and accordingly, the sentencing of the appellant to undergo Rigorous Imprisonment for 5(five) months and also to pay a fine of Rs.5000/-(Rupees Five Thousand) in default to undergo further Rigorous Imprisonment for 2(two) months is modified to the period of detention already undergone by the appellant, herein, along with a fine of Rs.5000/- (Rupees Five Thousand), in default to undergo further Rigorous Imprisonment for 2(two) months for the offence publishable under Section 354 Indian Penal Code.

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27. The appellant would now appear before the learned Sessions Judge No.IV, Kamrup, Guwahati, within a period of 30(thirty) days from today and deposit the fine amount. The fine amount on being realized, shall be paid to the victim girl.

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28. With the above observations and directions, the present Appeal stands disposed of.

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29 . Send down the records of the case along with a copy of the present order to the Trial Court for information and necessary action.

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30. Before parting with the record of the matter, this Court records its appreciation towards the able assistance provided by Mr. D. Bora, learned Amicus Curiae towards

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disposal of the instant appeal.

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JUDGE

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Comparing Assistant

Mono Das v. State of Assam

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Mono Das v. State of Assam

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