Usman Ali vs State Of Tripura

[1] Heard Ms. R. Guha, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent.

[2] The petitioner has been convicted by the judgment dated 22.08.2015 delivered in G.R. 237 of 2012 by the Judicial Magistrate, 1st Class, Kailashahar, Unakoti Judicial District for committing offence of outraging modesty and lurking house trespass by night in order to commit offence punishable respectively under Sections 354 and 457 of the IPC.

[3] Pursuant to the said judgment of conviction, the petitioner has been sentenced to suffer rigorous imprisonment for 6 (six) months and to pay a fine of Rs.10,000/- with default stipulation for committing offence of outraging modesty and the petitioner has been further sentenced to suffer 6 (six) months‟ rigorous imprisonment and to pay a fine of Rs.10,000/- with default stipulation. It has been directed that the sentences will run concurrently. Thus, the substantive sentence of imprisonment as inflicted is rigorous imprisonment for 6 (six) months.

[4] The said judgment and order of conviction and sentence dated 22.08.2015 was challenged by the petitioner herein in the court of the Sessions Judge, Unakoti by an appeal under Section 374(3) of the CrPC being Crl. App. No.10(3) of 2015 which was however transferred to the court of the Addl. Sessions Judge, Unakoti, Kailashahar for hearing and disposal in accordance with law.

[5] By the judgment dated 27.02.2016 as passed in the said appeal, the appeal was dismissed with observation that the beneficial provision of the Probation of Offenders Act, 1958 should not be extended to the convict as the offence as committed is punishable under Section 354 of IPC and for that purpose decision of the apex court in Ajahar Ali Vs. State of West Bengal reported in (2013) 3 SCC (Cri) 794 has been referred to.

[6] The said judgment and order dated 27.02.2016 is under challenge in this petition. For purpose of appreciation this revision petition, the relevant fact be briefly introduced as the outset. It is the case of the prosecution that on 02.06.2012 one Aban Ali, brother of the victim lodged a complaint in the Kailashahar Police Station alleging that on 28.05.2012 at about 02.00 hours, the appellant entered in the house of the complainant by breaking the door and outraged the modesty of his youngest sister (the name is withheld for purpose of protecting her identity) According to the complainant, at the time of occurrence, she was aged about 14 years. When she cried out the appellant fled away from the place of occurrence. Based on the said complaint, Kailashahar P.S. Case No.130/2012 was registered on 02.06.2012 under Sections 457/354 of the IPC and taken up for investigation.

[7] After completion of the investigation, the final police report charge sheeting the petitioner was filed and the trial court, as stated, framed the charge against the petitioner under Sections 354 and 457 of the IPC. In order to substantiate the charge, the prosecution adduced as many as 10 (ten) witnesses and introduced 5 (five) documentary evidence including a written resolution (Exbt.2) adopted in the meeting of the local Panchayet and the complaint (Exbt.1).

[8] After recording the prosecution evidence, the petitioner was examined under Section 281 read with Section 313 of the Cr.P.C. for having his response in respect of incriminating materials those clearly surfaced in the evidence as laid by the prosecution. Thereafter, the trial court having appreciated the evidence convicted the petitioner for committing offence of outraging modesty of the victim (PW7) and lurking house trespass at the night in order to commit offence. The said conviction was followed by the sentences as stated above. The judgment of conviction had been challenged in the appeal but without any result as the appeal was dismissed on affirming the judgment of the trial court.

[9] Ms. R. Guha, learned counsel appearing for the petitioner has taken this court to the thick of evidence in order to contend that the prosecution case is completely improbable and extremely exaggerated, and above all, not credible.

[10] According to the counsel for the petitioner, exaggerations started from the complaint and resultantly, incongruity is manifest in the statement of PW2 with whom the victim was sharing the bed. That apart, there surfaced multiple versions in the prosecution story. The victim, PW2 and PW5 who shared the same bed spoke so differently, that it is difficult to rely on their testimonies. PWs 2 and 5 have stated that PW7 cried out and they woke up from their sleep. Despite that circumstance, they had not followed the homogenous version.

[11] Ms. Guha, learned counsel for the petitioner has drawn the notice of this court that PW8 who is the immediate neighbour has categorically stated that she did not hear hue and cry from the house of the complainant. That apart, PW6 has stated that Aban Ali had a bitter relation with the petitioner herein. According to Ms. Guha, learned counsel all these materials if are read together would lead us to the conclusion that the prosecution case is visited by serious doubt and as such the conviction is wholly unwarranted. From the other side, Mr. S. Ghosh, learned Addl. P.P. rose to strongly repel the argument, advanced by the counsel for the petitioner.

[12] Mr. Ghosh, learned Addl. P.P. has submitted that there is some insignificant difference in the testimonies of PW1, PW2, PW5 and PW7, but those do not strike at the substratum of the prosecution case and that remained proved without any shred of doubt. Quite candidly Mr. Ghosh, learned counsel has submitted that what Ms. Guha, learned counsel has pointed out as regards who switched on the light, there is some incompatible different statements, but for this reason the whole testimony of the respective witnesses, mainly of PWs-2 and 5 cannot be discarded. Mr. Ghosh, learned Addl. P.P. has strongly supported the judgment and stated that even the finding on refusal of the probation is well reasoned.

[13] For appreciating the submission of the learned counsel for the parties, this court has taken a meaningful survey of the evidence. True it is that in the complaint, PW1 has stated that the petitioner broke the door of their dwelling hut, gagged mouth of his younger sister (PW7) and removed all the wearing apparels of her body with view to commit rape on her. When his sister raised alarm and all in the house, woke up they found the petitioner fleeing from the place. On the day, parents of the petitioner were informed but they requested not to make the occurrence public. For purpose of amicable conciliation, the complainant persuaded the Panchayet to intervene in the matter. According to him, in the meeting the petitioner had promised that he would marry the complainant‟s sister when she would be adult, but on the following day i.e. 01.06.2012, the petitioner denied the entire occurrence. Then the elders who intervened in the matter advised PW1 to take recourse at law.

[14] PW1 has reiterated the said version but there he has stated that the petitioner „tried to remove‟ the wearing apparels of his sister. As she raised alarm, the inmates woke up and the petitioner fled from the place of occurrence but he was identified by the electric lights. When he was confronted in the cross-examination, he maintained that the petitioner tried to gag mouth of the victim by wearing apparels etc.

[15] PW2, Samina Bibi is the grandmother of the victim who has stated that in the midnight, the victim raised her voice stating that somebody "embraced" her. She had immediately switched on the light and found the petitioner fleeing from that room. At that time, a red coloured half pant was in his wearing. In the cross-examination, PW2 has stated that she did not see the petitioner (the accused) when he was escaping from their room.

[16] PW3, Siddek Ali was also informed by Aban Ali (PW1) about the occurrence. He has stated in the trial that he heard from Aban that the petitioner removed wearing apparels of the victim with a view to outrage her modesty. PW3 had presided the meeting for amicable settlement. In the trial, he has introduced the resolution adopted in the said meeting (Exbt.2).

[17] PW4, Rukia Begum is a hearsay witness but she has stated that in the meeting as convened at the advice of the elders, the petitioner confessed his guilt or the act of violation. In the cross-examination, PW4 has stated that, she was apprised that the petitioner had removed her (the victim) wearing apparels.

[18] PW5, Amina Begum who had shared the bed with the victim at the night of occurrence has significantly stated in the trial that about 2.00 a.m. victim raised her voice and they woke up and switched on the electric light and found the petitioner fleeing from their room. In the cross-examination, she has stated that the petitioner "removed her wearing apparels with a view to outrage her modesty."

[19] None of the PWs-2 and 5 have stated to have seen the victim without wearing apparels even though they have claimed to have seen victim after waking up on her cry.

[20] PW8, a witness from the neighbourhood, has stated that he heard that the petitioner had entered in the bed room of the victim and removed her wearing apparels. However, he has indicated in the cross-examination that a bitter relation had existed between the petitioner and PW1.

[21] PW7 is the victim. She has admitted that PWs-2 and 5 were with him. At the deep of night when she felt that someone had started removing her pant then she woke up and switched on the light and saw the petitioner in the light. But she did not state to the Police Officer at the time of recording her statement that she had switched on the electric light and in that light she saw the petitioner.

[22] PW8 has stated that she did not hear hue and cry from the house of the complainant, but she heard that the petitioner had entered in the house of the complainant and touched the body of his sister.

[23] PW9, Nakul Debbarma, investigated the case and he has briefly narrated how he had prepared the hand sketch map of place of occurrence and how he carried out the investigation. He has also stated that the victim‟s statement was recorded under Section 164(5) of the Cr.P.C and since the petitioner was on the run, he could not be immediately arrested.

[24] PW10, Prahllad Ch. Roy scribed the complaint as dictated by Aban Ali (PW1). There had been no attempt to bring the statement of the victim recorded under Section 164(5) of the Cr.P.C.

[25] Having scrutinized the record of evidence and the submission advanced by the learned counsel for the parties, this court is of the view that, even though there are some exaggerations, even there is attempt to attribute motive, but the core of the prosecution case has been proved beyond reasonable doubt. The witnesses, PWs-1, 2, 5 and 7, have categorically stated they had seen the petitioner in the room where PWs-2, 5 and 7 were sleeping, by the electric light which was switched on in response to the alarm.

[26] PW7 has testified in the trial and stated that she felt someone was pulling her panty down and she raised the alarm, responding to which PWs-1, 2 and 5 woke up and saw the petitioner fleeing away from the room where the victim was sleeping with PWs-2 and 5.

[27] No explanation could be given by the petitioner, how he landed or appeared in the room of the PWs-2, 5 and 7. There is no reason why this court should disbelieve the statement of PW7. It may also be noted that what PW7 has testified in the trial cannot be stated to be exaggerated or unbelievable. No evidence to wutweigh the said evidence has been placed by the defence. As such this court is not inclined to interfere with the judgment of conviction as challenged in this petition and accordingly the same stands affirmed.

[28] However, this court finds that the petitioner was below 21 years of age. Having regards to the entire circumstances, the total denial of the probation qua Section 360 of the Cr.P.C. is not acceptable to this court, inasmuch as the petitioner had surreptitiously entered into the room where the victim was sleeping with PWs-2 and 5. In the conventional meaning, "criminal force" has not been applied on the victim. The victim might have been touched by the petitioner or the petitioner had touched the victim‟s private part.

[29] The appellate court has referred Ajahar Ali Vs. State of West Bengal (supra) to hold that when the charge under Section 354 is proved, it is desirable that no probation should be granted. The apex court in Ajahar Ali Vs. State of West Bengal (supra) has observed that provisions of Section 354 of the IPC has been enacted to safeguard public morality and decent behaviour. If any person used criminal force upon any women with the knowledge that the women‟s body will be outraged, he has to be punished.

[30] In Rupan Deol Bajaj Vs. Kanwar Pal Singh Gill reported in (1995) 6 SCC 194 the apex court held that offence relating to modesty of a woman cannot be treated as a trivial.

[31] In Ajahar Ali Vs. State of West Bengal (supra), the apex court having referred the State of Himachal Pradesh Vs. Dharam Pal reported in (2004) 9 SCC 681 has restated the law by reproducing the Para-6 of that report. In the present context, Para-6 from State of Himachal Pradesh Vs. Dharam Pal is extracted hereunder:

"6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 is hedged with a condition about the nature of offence and the character of the offender. Section 6 of the Act makes the provisions applicable in cases where offenders are under 21 years of age, as restrictions on imprisonment of offenders have been indicated in the said provision. In a case involving similar facts, this Court in State of Haryana v. Prem Chand upheld the judgment of the High Court which extended the benefit of provisions under Section 4 of the Act. Considering the peculiar circumstances of the case and taking into account the fact that on the date of occurrence the accused was less than 21 years old, we feel this is a case where no interference is called for with the judgment of the High Court, though some of the conclusions arrived at by the High Court do not have our approval." [Emphasis added]

[32] This kind of culpable act we are confronted with, cannot no doubt can be treated as trivial. But in the circumstances of this case, it appears that the petitioner entered in the house surreptitiously and touched the body of the victim (PW7) but this court is of the considered opinion that the petitioner did not remove the wearing apparels of the victim. If that was so done, PWs-2 and 5 could have seen her without clothes. Therefore, this court has disbelieved the statement in this regard by PW1. Considering the age of the petitioner being below 21 years at the time of the occurrence and absence of any criminal antecedent in the records and the manner of executing the culpable act, this court is of the view that, the petitioner may get the benefit of Section 6 of the Probation of Offenders Act, 1958.

[33] Justice cannot be based on retribution for such act. A person who has just crossed his juvenile years, should not be thrown in the prison where he will get exposed to the hardened criminals. But both the trial court and the appellate court have taken a lenient approach while sentencing the petitioner. Even thereafter, on considering the attending circumstances, this court is of the view that, the petitioner may be released on probation on admonition without coercing him to suffer the sentence if the petitioner furnished a bond of good conduct for a year with clear assurance that he would never involve in any criminal act or any act detrimental to the rule of law for the period of bond i.e. one year. The petitioner shall have to make a solemn declaration that he would reform himself by not indulging or associating with any crime. The petitioner is admonished and directed to reform.

[34] It is directed that, if the bond is submitted in the trial court supported by one surety of 30,000/- in the manner as stated, with undertaking that the petitioner shall not involve himself in any criminal act or any act detrimental to the rule of law during the period of bond i.e. one year and he would reform himself disassociating from any criminal act, then the sentence as given by the trial court and affirmed by the appellate court shall not be acted upon. However, if any adverse report comes from the probation officer to the trial court, then the trial court shall ask the surety to cause appearance of the petitioner to force him to suffer the sentence of imprisonment and of fine which has not been given effect. But if the bond as stated above is executed and submitted and it is acted upon to its spirit, the petitioner shall not be required to suffer the imprisonment or pay the fine.

[35] In terms of the above, this petition stands partly allowed and disposed of.

Send down the LCRs forthwith.

A copy of this order be supplied to the counsel appearing for the parties.