Sri Hontu Bora Vs the State of Assam and Anr.

Heard Mr. K. K. Handique, learned counsel appearing for the petitioner. Also heard Ms. A. Begum, learned Additional Public Prosecutor, appearing for the State respondent.

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2. By way of this application filed under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C”), the accused/petitioner assails the judgment & order dated 08.06.2016 passed by the learned Sessions Judge, Golaghat (hereinafter referred to as the “appellate court”), in Criminal Appeal No. 23/2015, whereby the sentence imposed by the learned Asstt. Sessions Judge, Golaghat (hereinafter referred to as the “trial court”), in Sessions Case No. 73/2014, under Section 354 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) sentencing the accused/petitioner to undergo rigorous imprisonment for 1 (one) year and fine of Rs. 5,000/- and in default of fine, simple imprisonment for 5 (five) months was affirmed.

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3. The prosecution case, in brief, is that on 21.01.2013 at about 11:00 a.m., the prosecutrix, an ASHA worker, had gone to Jonakipothar village for administering Pulse Polio drops to children. During the course of her official duty, she entered the premises of the accused/petitioner. At that time, the accused/petitioner was allegedly alone in the house. Taking advantage of the situation, the accused/petitioner forcibly pulled the prosecutrix inside his house and physically assaulted her with sexual intent. The prosecutrix, however, managed to resist and escape from his clutches.

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4. On the basis of the information furnished by the prosecutrix, Sarupathar P.S. Case No. 03/2013 was registered initially under Sections 376/511 IPC. Upon completion of investigation, charge-sheet was laid against the accused/petitioner. The learned trial court framed charge under Section 376/511 IPC. The charge having been read over and explained, the accused/petitioner pleaded not guilty and claimed to be tried.

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5. During trial, the prosecution examined seven witnesses. The accused/petitioner was examined under Section 313 CrPC and denied the incriminating circumstances appearing against him. Upon appreciation of the evidence, the learned trial court acquitted the accused/petitioner of the charge under Section 376/511 of the IPC but found him guilty of the offence punishable under Section 354 of the IPC and sentenced him accordingly. Aggrieved thereby, the accused/petitioner preferred Criminal Appeal No. 23/2015 before the appellate court. The appellate court dismissed the appeal and affirmed the conviction and sentence. Hence, the present revision petition.

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SUBMISSIONS

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6. Mr. K.K. Handique, learned counsel appearing for the petitioner, submits that he is not pressing the revision petition on the question of conviction and confines his challenge to the sentence imposed. It is submitted that the accused/petitioner has already undergone approximately three months and six days of imprisonment and, therefore, a lenient view may be taken by this Court.

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7. Ms. A. Begum, learned Additional Public Prosecutor, Assam, opposes the prayer and submits that the prosecution has proved the charge under Section 354 of the IPC beyond reasonable doubt. It is contended that the sentence

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imposed is already the minimum prescribed by law and, therefore, no interference is called for.

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CONSIDERATION OF THE COURT

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8. I have considered the submissions advanced by the learned counsel for the parties and have carefully gone through the records of the case, including the evidence adduced before the learned trial court.

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9. PW-1 , Smt. Monika Rajak, deposed that she accompanied the prosecutrix on the day of the incident for administering polio drops. According to her, the prosecutrix had entered the house of the accused while she herself proceeded to another house. Shortly thereafter, the prosecutrix approached her and disclosed that the accused had forcibly taken her inside his house by holding her hand. PW-1 further stated that she immediately informed their supervising ANM about the incident. Though she was not an eyewitness to the occurrence, her evidence assumes significance as she was the first person to whom the prosecutrix narrated the incident immediately thereafter.

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10. PW-2 , Anima Bora, the ANM under whom the prosecutrix worked, stated that she received a telephonic call from the prosecutrix at about 11:00 a.m. on the date of occurrence. The prosecutrix informed her that the accused had forcibly taken her inside the house and that she escaped after resisting him. PW-2 immediately conveyed the matter to her superior officer and advised the prosecutrix to lodge an FIR. Her testimony corroborates the prompt disclosure made by the prosecutrix.

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11. PW-3 , the prosecutrix, gave a detailed account of the incident. She deposed that after entering the premises of the accused for administering polio drops, she was asked to wait for the accused’s wife. While she was

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waiting, the accused sat beside her, held her hand, dragged her inside the house, embraced her, kissed her and touched her breast against her will. She further stated that she managed to free herself by resisting the accused and immediately informed her colleague, PW-1. Thereafter, the matter was reported to the concerned authorities and the FIR was lodged without delay. Her testimony remained substantially unshaken during cross-examination.

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12. PW-4 , Khogeswar Gogoi, stated that he had seen the prosecutrix entering and coming out of the house of the accused on the date of occurrence. Although he was not a witness to the actual incident, his testimony lends support to the prosecution case regarding the presence of the prosecutrix at the place of occurrence.

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13. PW-5 , Dr. Chakra Dhar Barman, who medically examined the prosecutrix, found no signs of sexual intercourse or physical injuries. Such findings are not inconsistent with the prosecution case, particularly because the allegation was not one of completed rape but of outraging modesty and sexual assault.

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14. PW-6 is a hearsay witness and his evidence has little evidentiary value for determining the guilt of the accused. PW-7 is the Investigating Officer whose testimony primarily relates to the investigation conducted by him.

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15. Upon an overall assessment of the evidence on record, this Court finds that the testimony of the prosecutrix is trustworthy, consistent and inspires confidence. Her version is materially corroborated by the prompt disclosure made to PW-1 and PW-2 immediately after the occurrence. The FIR was lodged without undue delay. No material contradiction or circumstance has been brought on record to discredit her testimony.

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16. The acts attributed to the accused, namely forcibly holding the prosecutrix, dragging her inside the house, kissing her and touching her breast against her will, clearly constitute an assault with intent to outrage her modesty and squarely attract the ingredients of Section 354 of the IPC. The findings recorded by the learned trial court and affirmed by the learned appellate court are based on proper appreciation of evidence and do not suffer from perversity, illegality or misreading of evidence.

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17. The scope of interference in revisional jurisdiction is limited. Unless the findings of the courts below are shown to be perverse, manifestly illegal, or resulting in miscarriage of justice, the revisional court would not ordinarily interfere with concurrent findings of fact. No such infirmity is discernible in the present case. Accordingly, the conviction of the petitioner under Section 354 of the IPC warrants no interference.

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SENTENCE

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18. Coming to the question of sentence, the only submission advanced on behalf of the petitioner is that he has already undergone a part of the sentence imposed and that the remaining sentence may be commuted.

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19. This Court is unable to accept the said submission. The offence was committed against a woman who had entered the petitioner’s premises in the discharge of her official duties as an ASHA worker. The conduct of the petitioner amounted to a serious violation of her bodily autonomy and dignity. The sentence imposed by the learned trial court is the minimum sentence prescribed under Section 354 of the IPC. The same has been affirmed by the learned appellate court.

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20. No exceptional circumstance has been shown which would justify

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interference with the sentence imposed. Consequently, this Court finds no ground to reduce, modify or commute the sentence awarded to the accused/petitioner.

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ORDER

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21. In view of the foregoing discussion, the Criminal Revision Petition stands dismissed.

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22. The conviction of the accused/petitioner under Section 354 of the IPC and the sentence imposed by the learned Assistant Sessions Judge, Golaghat, as affirmed by the learned Sessions Judge, Golaghat, are hereby upheld.

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23. The records of the trial courts be returned forthwith.

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24. No order as to costs.

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JUDGE

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Sri Hontu Bora v. the State of Assam and Anr.

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Sri Hontu Bora v. the State of Assam and Anr.

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