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Crl. Appl. No. 125 of 10 Page 1 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.
Crl. Appl. No. 125 of 10 Page 2 of 27
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.
Crl. Appl. No. 125 of 10 Page 3 of 27
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
Crl. Appl. No. 125 of 10 Page 4 of 27
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
Crl. Appl. No. 125 of 10 Page 5 of 27
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.
Crl. Appl. No. 125 of 10 Page 6 of 27
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
Crl. Appl. No. 125 of 10 Page 7 of 27
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
Crl. Appl. No. 125 of 10 Page 8 of 27
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
Crl. Appl. No. 125 of 10 Page 9 of 27
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),
Crl. Appl. No. 125 of 10 Page 10 of 27
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
Crl. Appl. No. 125 of 10 Page 11 of 27
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
Crl. Appl. No. 125 of 10 Page 12 of 27
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
Crl. Appl. No. 125 of 10 Page 13 of 27
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
Crl. Appl. No. 125 of 10 Page 14 of 27
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
Crl. Appl. No. 125 of 10 Page 15 of 27
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
Crl. Appl. No. 125 of 10 Page 16 of 27
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
Crl. Appl. No. 125 of 10 Page 17 of 27
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
Crl. Appl. No. 125 of 10 Page 18 of 27
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
Crl. Appl. No. 125 of 10 Page 19 of 27
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
Crl. Appl. No. 125 of 10 Page 20 of 27
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
Crl. Appl. No. 125 of 10 Page 21 of 27
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
Crl. Appl. No. 125 of 10 Page 22 of 27
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.
Crl. Appl. No. 125 of 10 Page 23 of 27
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.
Crl. Appl. No. 125 of 10 Page 24 of 27
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/-
Crl. Appl. No. 125 of 10 Page 25 of 27
(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.
Crl. Appl. No. 125 of 10 Page 26 of 27
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
Crl. Appl. No. 125 of 10 Page 27 of 27
judicial side in the light of the observations made in
paragraphs 33 to 36 in this judgment.
JUDGE
Upadhaya