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GR Case No. 3452/2016

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE : : : JORHAT.

PRESENT : Smti. Farhana Sultana, A.J.S.,

Chief Judicial Magistrate,

Jorhat.

For the Prosecution .... Sri Angshuman Baruah, Ld. A.P.P.

For the accused person .... Smti Bijulata Das, Ld. Advocate.

Ref. : GR Case No. 3452/2016

State of Assam

-vs-

Sri Prahlad Bharali .... Accused person

Under sections 448/354/323 of IPC

Charge framed on .... 06.04.2018

Evidence recorded on .... 28.05.2018, 21.07.2018, 07.09.2018,

01.03.2019, 19.09.2019

Statement of the accused u/s 313 Cr. P.C. recorded on : 01.11.2019

Arguments heard on .... 04.06.2020

Judgment delivered on .... 10.06.2020

JUDGMENT AND ORDER

1. The Prosecution of this case has been launched by the lodging of the ejahar,

by the Informant, Smti Ritashree Saikia alleging interalia that on 15.11.2016, she was

staying as a tenant in the rented house of the accused Sri Prahlad Bharali. On that

day, in the morning at about 9:15 a.m., while the Informant came to her house from

the bathroom after taking a bath, the accused forcibly entered the room of the

Informant by taking advantage of the absence of the husband of the Informant, and

tried to do illicit things with her. When the Informant tried to restrain the accused, the

accused assaulted her by giving fist blows. When she ran out of the room to the

Courtyard, the accused assaulted her with a stick in her neck for which she sustained

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severe injuries. Hence, the Informant Smti Ritashree Saikia, lodged ejahar before the

Jorhat Police Station on 15.11.2016.

2. The then Officer-in-charge of Jorhat Police Station, Sri Jatin Dihingia, S.I. of

Police, received and registered the ejahar as Jorhat P.S. Case No. 2495/2016 under

sections 448/354/323 of IPC dated 15.11.2016 and entrusted Sri Birinchi Konwar, S.I.

of Police to complete the investigation of the case. After taking up the charge of

investigation, the I.O. visited the place of occurrence and drew up a rough sketch map

of the place of occurrence. He also sent the victim for medical examination. On

appearance of the accused in police station, the I.O., arrested him and released him

after issuing notice under section 41 Cr.P.C. On completion of investigation, the I.O.

filed charge-sheet against the accused Sri Prahlad Bharali under sections 448/354/323

of IPC.

3. The charge-sheet on being put up before my Ld. Predecessor, was accepted and

the case was kept in her file. Thereafter, summons was issued to the accused.

4. On appearance of the accused, he was allowed to go on bail. Thereafter, copy

was furnished to him as per section 207 Cr. P.C. After hearing and on perusal of the

materials on record, formal charge of offence under sections 448/354/323 of IPC was

framed against the accused. The charge was read over and explained to the accused

to which he pleaded not guilty and claimed to be tried.

5. During the course of the trial, Prosecution examined 6 (six) witnesses in this

case. Thereafter, Prosecution evidence was closed and the accused was examined

under section 313 of Cr.P.C. His plea is of complete denial and although, at first he

wanted to adduce defence evidence, but later he declined to adduce defence evidence.

I have also heard the arguments put forward by the parties.

6. The point which arose for determination in this case is:-

I. Whether the accused on 15.11.2016, at about 9:15 a.m.,

committed house trespass by entering into the house of the

Informant in her possession with intent to commit offence under

sections 354/323 of IPC and hence liable to be punished under

section 448 of IPC?

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II. Whether the accused, on the same date, time and place,

voluntarily caused hurt to the Informant and hence liable to be

punished under section 323 of IPC?

III. Whether the accused, on the same date and time, assaulted the

Informant, a woman, intending to outrage her modesty and hence

liable to be punished under section 354 of IPC?

DISCUSSION, DECISION AND REASONS THEREOF :

7. I would like to begin my discussion of the judgment with the elaborate

description of the evidence as it has come to record during the trial. As it has appeared

from the record, Prosecution in order to prove this case against the accused person,

has examined altogether six witnesses including the Investigating Officer. However, it

could not produce the Medical Officer, to give his evidence in this case.

Evidence available on record:

8. The Informant of this case Smt. Ritashri Saikia, has been examined as PW-1.

From her evidence it has transpired that, at the time of the alleged incident, the

Informant used to live in the rented house of the accused Sri Prahlad Bharali, along

with her husband. At the time of the alleged occurrence, she was alone in her house.

On the day of the alleged occurrence, i.e, on 15.11.16, at around 9.15 am, the

Informant went to take bath. After completing bath, she came out of the bathroom in

her, ‗Mekhela‘ drapping it around her chest and covering herself with a cloth. When

she was entering her room, the accused, wrongfully restrained her but, she did not

pay any heed to his actions and came back to her room through another passage. As

she tried to close the door of the room the accused suddenly, appeared at the door,

pushed her and entered into the room. The Informant tried to obstruct him but, he hit

her on the nose. As a result, she felt dizzy and she started to shout for help. The

accused then pushed her into the bed, mounted on her and removed her clothes. The

accused then touched her inappropriately and had bitten her. She has further stated

that, she continued to raise hue and cry. Thereafter, the accused tried to remove his

pants, and as the Informant got chance, she kicked him. But, the accused then went

near the weaving wheel and brought a weaver‘s beam and hit her on her belly and

also, tried to strangulate her throat. The Informant then pushed the beam away from

her and came out of the room to the Courtyard. Neighbouring people gathered at the

Courtyard. Her mother in law, Smt. Rojimai Saikia, came and covered her with clothes.

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She narrated the whole incident to the people who came there at that time.

Thereafter, she lodged the Ejahar. Ld. APP, had brought on record the ejahar as

Exhibit -1, and proved her signature as Exhibit-1(1).

9. Perusal of the record reveals that the Informant, PW-1, was cross examined at

length, by the Ld. Defence Counsel. The gist of the cross examination of the PW-1, is

that, at the relevant time, there were only two occupants of the four rented houses

belonging to the accused person, including her. The other occupant was a rickshaw

puller. During that time, wife of the accused was not at home, though his daughter

was there. His daughter Preety and the younger sister of the Informant Smt. Joyshree

Bora were training along with one Sri Gobinda Nath. PW-1, admitted that she came to

know later that, Preety got married to Gobinda, but, she did not know whether Preety

eloped with Gobinda on the morning on which the alleged occurrence took place. Later

on, Ld. defence Counsel suggested to PW-1, that she and her sister, made the

daughter of the accused Preety elope with Gobinda. But, the said suggestion was

denied by PW-1. However, PW-1, admitted that, she was a member of the Arohan Self

Help Group and took two loans of Rs.15,000/ and Rs.25,000/. When she failed to

return the loan wife of the accused person returned the loan amount to the Self Help

Group. It was also, suggested to her that she and her husband did not pay the rent of

the room for six months and for the said reason the Informant and her husband

conspired together and lodged this false case against the accused. This suggestion

was also, denied by the Informant. Except these suggestions there is not much

evidence elucidated in the cross examination of PW-1. However, the accused person

specifically denied all the material statements in the form of suggestions made by her

in her examination in Chief.

10. The second witness examined by the Prosecution side is Sri Thaneswar Saikia,

husband of the Informant/victim. Though he was not present at home when the

alleged incident took place, when he came home, his wife, the victim, reported the

matter to him and basing on the information given by his wife, PW-2, i.e, Sri

Thaneswar Saikia stated before the Court, that, he went out of the house in the

morning and returned home after about one hour. When he reached home, he saw a

commotion and he was reported by his wife, that, when she came out of the

bathroom, and entered their house, the accused pushed her and trespassed into the

house and threw her into the bed. Thereafter he tried to molest her, but, later, he left

her and went out. So, PW-2, took his wife to the Police Station and she filed the

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ejahar. It has also, come out in his evidence that Police conducted Medical

examination of the victim.

11. This witness was also, suggested the defence plea of taking loan and wife of

the accused person standing as a guarantor, thereafter, repayment of the loan by the

guarantor, non payment of rent of the house and that he and his wife, conspired and

lodged this false case against the accused. But, the witness denied all the aforesaid

suggestions put by the Ld. Defense Counsel.

12. PW-3, Smt. Rojimai Saikia, is the mother in law of the Informant/victim.

According to her, she stays in a rented house in the same vicinity as her daughter in

law and her son. On 15.11.16, at around 9.15 am, her daughter in law shouted

‗Mother‘, ‗Mother‘. At that time the accused came running behind her and assaulting

her. As she asked the accused why he was beating her, the accused came chasing her

too. On being asked, her daughter in law told her that the accused had harassed her

and had beaten her. She has also, seen bleeding from her mouth. In her cross

examination she has stated that, both her house and the house of her son, PW-2, is

separated by one katha of land. However, she did not have any idea about any

monetary transaction and non payment of rent by her son and daughter in law.

13. PW-4, is Smt. Pompy Bora. She has stated that about one year back she had

heard hue and cry in the house of Prahlad Bharali, the accused, at around 8.30 am,

but she did not know about the alleged incident.

14. PW-5, Smt. Joyshree Bora, is the sister of the Informant/victim. Though she

has not seen the incident taking place, from her evidence it can be gathered that, on

15.11.16, at around 9.30 am, she went to the house of her sister, PW-1. She saw her

sister sitting in the veranda of the house only on a Mekehla. Her mother in law, PW-3,

was holding her. She was crying and bleeding from the mouth. She had also, seen a

number of people in the house. The Informant/victim then informed her that when

after taking bath, she went to her room, the accused pushed her into the room

assaulted her. He gagged her mouth and threw her into the bed and tried to molest

her. But, she raised hue and cry and somehow came out of the room. She has further

said that, her sister lodged the ejahar and she was examined by a medical officer. She

was admitted in the hospital for about eight days. When she was cross examined by

the Ld. Defence Counsel, she was also, suggested the same facts regarding loan, non

payment of rent and lodging of false case against the accused, to get relief from non

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payment of rent. The witness has denied all the aforesaid suggestions put to her by

the defence side. She was also, suggested that she deposed falsely and that her sister

did not inform her about the alleged incident.

15. From the evidence of the Investigating Officer, PW-6, Sri Birinchi Konwar, S.I of

Police, it has been revealed that, he was assigned to investigate into the alleged

offence by the then Officer in Charge of the Jorhat P.S on receipt of the written ejahar,

Ext-1, wherein, the signature of the O.C, Jorhat P.S, is Ext-1(2). On receipt of the said

assignment, PW-6, conducted all the formalities of investigation, including visiting the

place of occurrence, preparation of sketch map, recording of statements of the

Informant and witnesses, examination of the victim, by Medical Practitioner,

examination of the accused, etc. The sketch map is exhibited as Ext-3 and the

signature of the I.O, is proved as Ext-3(1). On completion of investigation and finding

sufficient materials against the accused, the I.O, filed charge sheet against him under

sections 448/354/323 of IPC. The charge sheet is brought into the record as Ext-4 and

the signature of the I.O, is proved as Ext-4(1). During cross-examination, PW6, the

I.O. deposed that the place of occurrence is not a busy area and not many houses of

people are there. Houses are at a little distance away from it. He has not mentioned in

this sketch map that there is a forest or paddy field near the place of occurrence. He

has not mentioned in his charge-sheet that he has not recorded statements of nearby

people of the place of occurrence as the place of occurrence is barren. The witnesses

mentioned by him are not from the same addresses. The witnesses reside near the

place of occurrence. He did not find any gathering of 40/50 people at the place of

occurrence at his time of visit. He did not seize any wearing clothes that were being

worn by the Informant at the time of occurrence He has not mentioned the description

of the bed in his sketch map. PW3, Smti Rojimai Saikia did not state before him that

when she reached the place of occurrence, the accused assaulted her daughter in

front of her and when she asked the accused the reason for such assault, the accused

outraged the modesty of her daughter-in-law and also threatened her with dire

consequences.

16. Now, let us examine the arguments advanced by the Ld. APP and the Ld.

Defense Counsel and its applicability in relation to the evidence as discussed above.

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Arguments advanced by the Ld. Counsels for both sides:

Ld. APP, Sri A. Baruah, has argued that, the Prosecution of the case has been

launched by filing of the ejahar, Ext-1, by the Informant/victim, on 15.11.16, against

the accused person. After the ejahar, Ext-1, was lodged, the I.O, of the case

immediately, went to the place of occurrence and recorded the statements of the

witnesses, who were present there. He also, prepared the sketch map, ext-3 and

conducted medical examination of the victim by a Medical Practitioner. At due time he

collected the Medical Report, which has been brought into record as Ext-2 and after

observing all the formalities, he found sufficient material against the accused person

u/s 448/354/323 of IPC, and accordingly, filed charge sheet, Ext-4, against the

accused person, namely, Sri Prahlad Bharali, in the aforesaid sections of law. Ld. APP,

also, argued that, from the record as well as the evidence of the I.O, PW-6, it appears

that the I.O, had conducted the investigation in proper manner, without any material

irregularity. So, filing of charge sheet, against the accused regarding the alleged

incident prima facie shows that, there is truth in the allegation of the Informant

against the accused. Thereafter, the charge sheet when laid before the then Chief

Judicial Magistrate, Jorhat was accepted and the accused was summoned to appear

before the Court. The accused appeared and was furnished with the copies of the

relevant documents and charge was framed against him, though on being explained

about the charges u/s 448/354/323 of IPC, the accused pleaded not guilty and claimed

to be tried. Ld. APP, has submitted that, faming of charge is another step, achieved by

the Prosecution towards proof of guilt of the accused. He then argued that the

evidence of the Prosecutrix, as brought on record shows that, she has firmly stood the

test of the cross examination and the defence side failed to bring any material creating

any doubt on her reliability and credibility. He further argued that, Ld. Defense Counsel

has not put any question regarding the alleged incident except denying the same. His

argument also, reveals that the evidence brought on record by PW-1, regarding the

accused person‘s application of force and trespassing into the room, by pushing her,

throwing her into the bed, hitting her on the nose, removing her wearing apparel, like

‗Mekhela‘, gagging her mouth, trying to remove his pants, all, showed that, the

Informant was narrating an incident which she experienced utterly in a disgraceful

manner. Though the evidence of the Prosecutrix was recorded by my predecessor in

Office, Ld. APP, argued that, the way she has narrated the incident, and stood the

cross examination, there is no iota of doubt that she had stated the truth before the

Court. His argument further revealed that, though there is no eye witness to the said

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occurrence, her mother in law, PW-3 sister PW-5, reached the place of occurrence

soon after the incident and saw her crying and blood coming out of her mouth.

17. Ld. APP has also argued that, though there is no evidence of any eye witness,

evidence adduced by the other witness shows that she was seen by PW-3 and PW-5,

sitting on the verandah and crying. These two witnesses have also, seen blood coming

out of the mouth of the Informant/victim. He further argued that, though Medical

Officer, could not be examined by Prosecution, the I.O, said that he sent the victim for

Medical Examination and collected the Medical Report. Medical Report, brought into

record as Ext-2, has shown that, there was injury on the person of the victim. Ld. APP

has argued that, since the accused was the landlord of the Informant/victim, he was in

a domineering position and was able to overpower her by force. Considering the

clinching evidence of the Informant/victim and supporting evidence by the other

Prosecution witnesses, Ld. APP has submitted that this is a fit case for holding the

accused Sri Prasanta Bharali, guilty of the offence charged and prayed for adequate

punishment.

18. Now, let us discuss the argument advanced by the Ld. Defense Counsel. Ld.

Defense Counsel, Smt. B. Das, has argued that, the Informant and her husband had

conspired against the accused and lodged this false case so that they may be relieved

from the outstanding unpaid rent due against them. According to her, both the families

had very good relation in pursuance of which the wife of the accused, stood as a

Guarantor for the Informant, when she took loans amounting to Rs.15,000/- and

Rs.25,000/- from the Arohan Self Help Group. Later, even the wife of the accused

repaid the loan amount on behalf of the Informant as she failed to make the payment.

So, within this kind of cordial relationship, commission of such a disgraceful offence

does not arise at all. Moreover, she argued that, on the day of alleged occurrence the

daughter of the accused eloped with one Gobinda Nath, due to instigation from the

Informant and her sister, PW-5. And, when the accused went to confront with the

Informant she started abusing the accused with filthy language. Ld. Defence Counsel,

has also, argued that, Prosecution failed to produce any independent witness to the

alleged occurrence. All the witnesses examined, are interested witnesses as they are

related to the Informant. So, their evidence cannot be based to hold that accused

guilty of the alleged offence. Moreover, her argument also, challenged the veracity of

the Informant/victim as the Informant/victim has not stated some of the important

facts in the ejahar. Ld. Defence Counsel has argued that, the Informant has not

mentioned either in her Ejahar or her statement u/s 161 of Cr.P.C, about removal of

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the Mekhela by the accused at the time of the incident and also, about other facts

which she had stated in her evidence. She has also, argued that, the I.O did not seize

any article from the place of occurrence specially the weaver‘s beam and the wearing

clothes of the victim. It has been further argued that, the I.O, did not prepare the

sketch map of the place of occurrence properly as he had not shown the bed, inside

the room where the alleged incident took place.

19. It has been also, argued by the Ld. Defence Counsel that the all the

Prosecution witnesses are doubtful as there are a number of material discrepancies,

contradictions as well as omissions in the evidence of the witnesses. Hence, the

Prosecution has failed to establish the case against the accused beyond all reasonable

doubt and hence, the accused deserves to be acquitted on benefit of doubt.

20. After the discussion of the arguments, let us appreciate the evidence against

the arguments as advanced by both the parties. Ld. Defence Counsel has argued that

the Informant/victim has failed to mention about the material facts, like the accused

removing her Mekhela, hitting on her nose and gagging her with the beam of the

Weaving machine, in the ejahar, Ext-1. But, perusal of Ext-1, shows that, she has

clearly stated in the Ejahar that the accused trespassed into her room by pushing her

inside, threw her on the bed and touched her breasts and blouse. It shows that, the

Informant has mentioned the material facts though she has not mentioned the same in

details.

21. It is a settled legal principle that, the Ejahar need not be an encyclopaedia. In

a number of cases the Hon‘ble Supreme Court has held the said proposition of law.

Amongst others, in cases Hemraj vs State, reported in (2003)12SCC 241 and

Bishna v. State of W.B., (2005) 12 SCC 657 : (2006) 1 SCC (Cri) 696 at page

674, it has been held that, “the first information report, it is well settled, need

not be encyclopaedia of the events. It is not necessary that all relevant and

irrelevant facts in details should be stated therein, though it must disclose

the commission of a cognizable offence”. FIR need not contain full details. It is

neither customary nor necessary to mention every minute detail. Only essential or

broad picture need to be stated in the FIR. In this case, the first information report,

clearly shows that the accused Prahlad Bharali has committed a cognizable offence.

Hence, I am of opinion that the argument advanced by the Ld. Defence Counsel

regarding the elements of ejahar is not sustainable.

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22. Now let us discuss the next argument advanced by the Ld. Defence Counsel. As

far as the argument of the Ld. Defence Counsel regarding existence of cordial relation

between both the parties and the wife of the accused persons standing as a Guarantor

and repayment of loan amount is concerned, this plea of the accused does not help

him in my opinion. It may be considered as a double edged weapon, like existence of

enmity between parties. Though the Prosecution must stand on its own legs, defence

also, needs to prove the plea or at least create a doubt in the mind of the Court in

such a way that the commission of the offence becomes improbable. Just because

there is a cordial relation between both the parties, the commission of the alleged

offence does not become impossible. Hence, I am not inclined to accept this argument

of the Ld. Defence Counsel. Rather, in my opinion non payment of rent coupled with

the repayment of the loan amount, by his wife, may have worked against the

Informant and she became the victim of the accused person. This circumstance goes

against the accused person since there is every possibility that he acted out of grudge

against the Informant.

23. As regards the Ld. Defence Counsel‘s argument relating of contradictions and

discrepancies in the evidence of the witnesses, I have examined the evidence carefully

and found that, there is no material discrepancy in the evidence of the witnesses. It is

a settled legal proposition that, omission or contradictions, as long as, do not affect

the root of the case, need not be acted upon. The contradictions and discrepancies, if

material, only affect the result of the case. Minor discrepancies should be neglected.

The contradictions and discrepancies in this case, in my opinion are negligible.

24. The next argument advanced by the Ld. Defence Counsel is that Prosecution

failed to bring any independent witness to the occurrence and all the witnesses

examined by the Prosecution are related witnesses. So, they are interested and cannot

be believed. As it has appeared from the evidence on record that, the alleged incident

took place at around 9.15 am, when the Informant/victim came out of the bathroom.

It is also, revealed from the record that, the Informant lived in the rented house of the

accused along with her husband, whereas her mother in law lived nearby, in a

different house. The accused had another tenant who was a Rickshaw puller and the

two other rooms were vacant. At the time of the alleged incident PW-2, husband of

the Informant was also, not present at the house. Moreover, the incident took place

inside the house. Naturally, there would not be any independent witness to the said

incident. And if there would have been any, they would have been relatives of the

Informant, who could have been living with the Informant at the relevant time. In such

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a situation, probability of existence of independent witness is very low and the

relatives, inmates of the house and the neighbours will be the most natural witnesses.

In this regard I would like to cite a decision of the Hon‘ble Apex Court, given in State

of Rajasthan v. Teja Ram, (1999) 3 SCC 507 : 1999 SCC (Cri) 436 at page

513, wherein it has been observed by the Hon’ble Apex Court that,

“20. Another reason which the High Court advanced to repel the

testimony of such a good number of probable witnesses is that they are all

close relatives of the deceased and that independent witnesses were not

examined by the Prosecution. The over-insistence on witnesses having no

relation with the victims often results in criminal justice going awry. When

any incident happens in a dwelling house, the most natural witnesses would

be the inmates of that house. It is unpragmatic to ignore such natural

witnesses and insist on outsiders who would not have even seen anything.

If the Court has discerned from the evidence or even from the investigation

records that some other independent person has witnessed any event

connecting the incident in question, then there is a justification for making

adverse comments against non-examination of such a person as a

Prosecution witness. Otherwise, merely on surmises the Court should not

castigate the Prosecution for not examining other persons of the locality as

Prosecution witnesses. The Prosecution can be expected to examine only

those who have witnessed the events and not those who have not seen it

though the neighbourhood may be replete with other residents also.”

25. In another case, State of Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981

SCC (Cri) 593 at page 754, it has been observed by the Hon’ble Apex Court

that

“7. As mentioned above the High Court has declined to rely on the

evidence of PW 1 on two grounds: (1) she was a “highly interested” witness

because she “is the wife of the deceased”, and (2) there were discrepancies

in her evidence. With respect, in our opinion, both the grounds are invalid.

For, in the circumstances of the case, she was the only and most natural

witness; she was the only person present in the hut with the deceased at

the time of the occurrence, and the only person who saw the occurrence.

True, it is, she is the wife of the deceased; but she cannot be called an

“interested” witness. She is related to the deceased. “Related” is not

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equivalent to “interested”. A witness may be called “interested” only when

he or she derives some benefit from the result of a litigation; in the decree

in a civil case, or in seeing an accused person punished. A witness who is a

natural one and is the only possible eyewitness in the circumstances of a

case cannot be said to be “interested”. In the instant case PW 1 had no

interest in protecting the real culprit, and falsely implicating the

respondents.”

26. In the present case there is nothing in the record to show that, the mother in

law and the sister had any interest in getting the accused convicted and punished.

Therefore, from the record and the decisions of the Hon‘ble Apex Court, it is clear that,

the evidence adduced by both PW-3 and 5 cannot be discarded just for being related

witnesses.

27. Further, no one will commit an offence in presence of witnesses, exposing

himself to be caught and prosecuted. Hence, in my considered opinion there was very

little possibility of presence of an eye witness to the said occurrence, except a chance

witness. Accordingly, without any hesitation it can be said that this argument of the

Ld. Defence Counsel is also, not acceptable.

28. As far as defence argument relating to non seizure of clothes and beam, and

sketch map is concerned, in my opinion the same will not affect the Prosecution case,

being an irregularity in the process of investigation by the I.O. It is a settled law that

lacuna in investigation, will not outrightly, throw away the Prosecution case.

29. In view of the aforesaid discussion it is found that the witnesses examined by

the Prosecution side are credible and trustworthy and their evidence can be acted

upon for conviction of the accused person.

30. Now, let us check whether the evidence on record is sufficient to bring home

the charge against the accused under sections 448/354/323 of IPC.

Section 448 of IPC, provides - Punishment for house-trespass.—Whoever

commits house-trespass shall be punished with imprisonment of either description for

a term which may extend to one year, or with fine which may extend to one thousand

rupees, or with both. The evidence of the PW-1, shows that the accused pushed her

inside the house and entered into the room. By pushing her he had forcefully entered

the room. Hence, it is clear that the requirement of section 448 of IPC, is fulfilled and

accordingly, it is held that Prosecution has been able to prove section 448 of IPC,

against the accused.

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31. As far as section 323 of IPC, is concerned, it says that, whoever, except

in the case provided for by section 334, voluntarily causes hurt, shall be punished with

imprisonment of either description for a term which may extend to one year, or with

fine which may extend to one thousand rupees, or with both. Evidence available on

record shows that, the accused had voluntarily caused hurt to PW-1, while trying to

enter into the room pushed her, hit her on the nose, tried to molest her by throwing

her into the bed and throttling her neck with a weaver‘s beam as a result of which

blood came out of the mouth which both PW-3 and 5 saw. Though Ld. Defence

Counsel had argued that, Prosecution has failed to examine the Medical Officer, but

the I.O has stated that, he sent the victim for medical examination and collected the

Medical report, Ext-2. Moreover, to prove the ingredients of section 323 of IPC,

examination of the Medical Officer, is not necessary. Accordingly, it is held that the

Prosecution has been able to prove the guilt of the accused u/s 323 of IPC, against the

accused.

32. Now, let us check whether the evidence on record are enough to prove the

ingredients of the most serious offence under section 354 of IPC, against the accused.

In the case of Raju Pandurang Mahale v. State of Maharashtra, (2004) 4 SCC

371 : 2004 SCC (Cri) 1259 at page 376, the Hon’ble Supreme Court observed

that….

11. Coming to the question as to whether Section 354 of the Act has any

application, it is to be noted that the provision makes penal the assault or

use of criminal force on a woman to outrage her modesty. The essential

ingredients of offence under Section 354 IPC are:

(a) That the assault must be on a woman.

(b) That the accused must have used criminal force on her.

(c) That the criminal force must have been used on the woman

intending thereby to outrage her modesty.

12. What constitutes an outrage to female modesty is nowhere defined.

The essence of a woman's modesty is her sex. The culpable intention of the

accused is the crux of the matter. The reaction of the woman is very

relevant, but its absence is not always decisive. Modesty in this section is an

attribute associated with female human beings as a class. It is a virtue

which attaches to a female owing to her sex. The act of pulling a woman,

removing her saree, coupled with a request for sexual intercourse, is such as

would be an outrage to the modesty of a woman; and knowledge, that

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modesty is likely to be outraged, is sufficient to constitute the offence

without any deliberate intention having such outrage alone for its object. As

indicated above, the word “modesty” is not defined in IPC. The Shorter

Oxford Dictionary (3rd Edn.) defines the word “modesty” in relation to a

woman as follows:

“Decorous in manner and conduct; not forward or lewd; Shamefast;

Scrupulously chaste.”

13. Modesty is defined as the quality of being modest; and in relation to

a woman, “womanly propriety of behaviour; scrupulous chastity of thought,

speech and conduct”. It is the reserve or sense of shame proceeding from

instinctive aversion to impure or coarse suggestions. As observed by Justice

Patteson in R. v. James Lloyd [(1836) 7 C&P 317 : 173 ER 141] :

In order to find the accused guilty of an assault with intent to commit

a rape, Court must be satisfied that the accused, when he laid hold of the

prosecutrix, not only desired to gratify his passions upon her person but

that he intended to do so at all events, and notwithstanding any

resistance on her part.

The point of distinction between an offence of attempt to commit rape and

to commit indecent assault is that there should be some action on the part

of the accused which would show that he was just going to have sexual

connection with her.

14. Webster's Third New International Dictionary of the English language

defines modesty as “freedom from coarseness, indelicacy or indecency: a

regard for propriety in dress, speech or conduct”. In the Oxford English

Dictionary (1933 Edn.), the meaning of the word “modesty” is given as

“womanly propriety of behaviour; scrupulous chastity of thought, speech

and conduct (in man or woman); reserve or sense of shame proceeding from

instinctive aversion to impure or coarse suggestions”.

15. In State of Punjab v. Major Singh [AIR 1967 SC 63 : 1967 Cri LJ 1] a

question arose whether a female child of seven-and-a-half months could be said to be

possessed of ―modesty‖ which could be outraged. In answering the above question the

majority view was 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‖

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referred to have to be gauged by contemporary societal standards. It was further

observed in the said case 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 case [AIR 1967 SC 63 : 1967 Cri LJ 1] the ultimate test

for ascertaining whether modesty has been outraged is whether the action of the

offender is such as could be perceived as one which is capable of shocking the sense

of decency of a woman. The above position was noted in Rupan Deol Bajaj

v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] . When the

above test is applied in the present case, keeping in view the total fact situation, the

inevitable conclusion is that the acts of the accused-appellant and the concrete role he

consistently played from the beginning proved combination of persons and minds as

well and as such amounted to ―outraging of her modesty‖ for it was an affront to the

normal sense of feminine decency.

33. What has appeared in the case in hand from the evidence of the Prosecutrix,

that, the victim, a tenant in the rented house of the accused Sri Prahlad Bharali, came

out of the bathroom after taking bath. When she was about to enter her room, the

accused suddenly appeared and pushed her into the room. As she tried to obstruct

him, the accused hit her on the nose and forcefully entered into the room, pushed her

onto the bed, he gagged her mouth and removed her clothes. He also, tried to remove

his pants, but, at that moment the victim kicked him and somehow got herself out of

the clutches of the accused. Every action of the accused from pushing her into the

room and then entering in, throwing her into the bed, removing her clothes, touching

her inappropriately and an attempt to remove his pants clearly shows that, the

accused had the intention to outrage her modesty. As such from the evidence on

record and the law laid down by the Hon‘ble Supreme Court as discussed above, it can

be clearly held that Prosecution has been able to prove the charge under section 354

of IPC, against the accused, Sri Prahlad Bharali for being guilty of outraging modesty

of the victim.

34. Accordingly, in view of the aforesaid discussion, I am of opinion that the

Prosecution has been able to prove the guilt of the accused under sections

448/354/323 of IPC, beyond all reasonable doubt. Hence, the accused Sri Prahlad

Bharali is found guilty of offences under sections 448/354/323 of IPC and convicted.

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35. Heard the accused, Sri Prahlad Bharali on the point of sentence under section

248 (2) Cr.P.C. It is prepared in separate sheet and tagged with the case record. He

has stated before the Court that he has wife and two minor children to look after. He

does not have any earning source except his rented houses. He has submitted before

the Court to punish him leniently.

36. I am not inclined to advance the benefit of Probation of Offender‘s Act to the

accused, because, in my opinion, it will not have any deterrent effect on the convict. It

is of utmost necessity that the convict does not dare to do any such crime in the

future.

37. So, in my opinion, a sentence of Simple Imprisonment for a period of 3 (three)

months under section 448 of IPC, a sentence of Simple Imprisonment for 3 (three)

months under section 323 of IPC and a sentence of Simple Imprisonment for a period

of 2 (two) years and fine of Rs.5000/-, under section 354 of IPC, will suffice the cause

of Justice.

38. Accordingly, the accused Sri Prahlad Bharali is sentenced to undergo Simple

Imprisonment for a period of 3 (three) months for committing offence under section

448 of IPC. He is further sentenced to undergo Simple Imprisonment for a period of

another 3 (three) months for committing offence under section 323 of IPC. He is

further sentenced to undergo Simple Imprisonment for a period of 2 (two) years and

to pay a fine of Rs.5000/- (Rupees Five Thousand), in default to undergo simple

imprisonment for another 6 (six) months, for committing offence under section 354 of

IPC.

39. All the sentences shall run concurrently.

40. The fine amount, if realized, be given to the victim Smti Ritashree Saikia under

section 357 of Cr.P.C.

41. Let a free of cost copy of the judgment be given to the accused as per the

provisions of Section 363(1) Cr.P.C.

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42. Accused is informed about his right of appeal against the judgment and order

of conviction and sentence.

43. Given under my hand and seal of this Court on this 10th day of June, 2020.

(Smti Farhana Sultana)

Chief Judicial Magistrate,

Jorhat.

Dictated & corrected by me : Chief Judicial Magistrate, Jorhat.

Typed and Transcribed by: (Pratimaan Bora)

Stenographer Grade-II

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APPENDIX.

WITNESSES FOR THE PROSECUTION :

P.W.1 ... Smti Ritashree Saikia

P.W.2 ... Sri Thaneswar Saikia

P.W.3 ... Smti Rojimai Saikia

P.W.4 ... Smti Pompy Bora

P.W.5 ... Miss Joyshree Bora

P.W.6 ... Sri Birinchi Konwar, S.I. of Police

WITNESSES FOR THE DEFENCE :

NIL.

DOCUMENTS EXHIBITTED BY PROSECUTION SIDE:

Ext.1 – Ejahar

Ext.2 – Sketch map

Ext.3 – Medical report

Ext.4- Charge-sheet

DOCUMENT EXHIBITED BY DEFENCE SIDE/ACCUSED :

NIL.

(Smti Farhana Sultana)

Chief Judicial Magistrate,

Jorhat.