Jakir Hossain vs State Of Tripura on 12 October, 2007

Gauhati High Court
Jakir Hossain vs State Of Tripura on 12 October, 2007
Equivalent citations: 2008 (1) GLT 921
Author: U Saha
Bench: U Saha


JUDGMENT

U.B. Saha, J.

1. This appeal is preferred under Section 374 of the Code of Criminal Procedure against the conviction for offence under Section 376(1) read with Section 511 of the I.P.C. and sentence to R.I. for a period of three years and a further fine of Rs. 3,000/- and i/d. R. I. for another period of one year by the learned Additional Sessions Judge, Sonamura, West Tripura vide his judgment and order dated 2.12.2006 in Sessions Trial No. 06 (WT/S) of2006.

2. Heard Mr. A.K. Bhowmik, learned senior counsel, assisted by Mr. M. Laskar, learned Counsel for the convict-appellant and Mr. A. Ghosh, learned Addl. Public Prosecutor for the State respondent.

3. The accusations which led to try the accused-appellant and award conviction are narrated as follows:

On 21.5.2002 at about 5 O’clock in the morning while the victim (P.W. 5) was going to work in the house of one Abani Sarkar of Ratan Doula under Kalamchoura Police Station, on the way the accused-appellant Jakir Hossain came and called her to Baishnab Mandap where he pulled her cloth by catching hold of it and tried to outrage her modesty in the destroyed mandap (Pandal) situated in the road side. While she raised alarm, accused-appellant pressed her mouth with the objective of raping her. Thereafter he laid her down on the ground and pressed her. At that moment seeing vehicles are going by the road, she again raised alarm and some how managed to free herself and went away to the house of Abinash Ch. Das (P.W. 2) and narrated the story to him and his wife Rajubala Das (P.W. 1). It is also stated by the victim that before 3/4 days of the alleged date of occurrence the accused-appellant had threatened her by showing a dagger and she narrated the incident to the Matabbars of the village and she was waiting for getting justice from their end and for that reason delay occurred in lodging the ejahar, which ultimately she lodged on 23.5.2002 at about 1720 hrs. before the Officer-in-Charge of Kalamchoura Police Station, Sonamura, West Tripura.

4. On the basis of her F.I.R., police registered a case being Kalamchoura P.S. Case No. 18/02 under Sections 376/511/5061.P.C. and started investigation regarding the alleged incident and after completion of the investigation police filed charge sheet against the accused Jakir Hossain, appellant herein, for the commission of offence punishable under Sections 341,376,506 read with Section 511 I.P.C.

5. On being received of the charge sheet, the learned Sub-Divisional Judicial Magistrate, Sonamura took the cognizance of the alleged offence and since the offence is triable by a court of session, the case was committed to the Court of Additional Sessions Judge, Sonamura, West Tripura. The learned trial court on the basis of the materials available framed charges against the accused-appellant under Section 376 (1) read with Section 511 of I.P.C. to which he pleaded not guilty and claimed to be tried.

6. In order to establish the charge the prosecution altogether examined eight witnesses and exhibited documents to prove its case and the accused-appellant, on the other hand, adduced no evidence in his defence, simply denied the charge. The learned trial court also recorded the statement of the accused-appellant under Section 313 of the Cr.P.C.

7. On evaluation of the evidence of the witnesses examined by prosecution as well as other materials on record and after hearing the learned Counsel of both the parties, the learned Additional Sessions Judge was pleased to convict the accused-appellant under Section 376(1) read with Section 511 of the I.P.C. and sentenced him as stated above. Being aggrieved by the said judgment and order of conviction and sentence, the accused-appellant preferred the instant appeal and raised question regarding the validity of the said judgment and order.

8. In support of the appeal, Mr. Bhowmik, learned senior counsel submitted that even if the story narrated by the victim in her FIR and in her statement before the Court are taken up for consideration then also no case is made out against the accused-appellant being the FIR was lodged almost after 48 hours of the alleged occurrence before the police though the police station is half a kilometer from the alleged place of occurrence and the victim herself being not a ‘purdanoshin’ lady working either in the hotels or in the houses cannot be treated as a rustic one and for such delay in lodging the FIR it can be easily presumed that the victim informant took time for lodging the FIR only to concoct the story which is ultimately narrated in the FIR and the alleged story being a concocted one the court should have disbelieved the same and set aside the order of conviction and sentence and acquitted the accused-appellant on the aforesaid ground alone. He next submitted that though in the FIR the victim narrated that the delay in lodging the FIR caused for getting justice from the village Matabbar and waiting for social justice, but it does not get support from the evidence of the witnesses and none of the village matabbars was examined as a witness and as a result, the accused-appellant also did not get any scope for cross-examination of those persons for the purpose of contradiction and the impugned judgment and order of conviction and sentence is also bad as the prosecution failed to produce rather withheld two chargesheeted witnesses, namely Lokesh Miah and Kamu Miah. Had they been examined in the Court they would have not supported the case of prosecution and for such non-production of those witnesses there should be a presumption against the prosecution and in favour of the accused-appellant under Section 114 of the Evidence Act. Mr. Bhowmik also submits that the victim in her first information report did not say regarding presence of anybody near to the vicinity of the alleged place of occurrence, far so, the witnesses examined, only stated that she somehow managed to free herself and went to the house of Abinash (P.W. 2). From that statement only it can be presumed that she stated the story either to Abinash or to his wife and not to anybody else. But the prosecution examined so many witnesses including P.Ws. 4,5 and 6 on whose version mainly the learned trial court convicted the accused-appellant and sentenced him and failed to consider that versions of P.Ws. 4, 5 and 6 are nothing but mostly improved and contradictory one which cannot be relied upon for the purpose of conviction of an innocent person like the accused-appellant. According to Mr. Bhowmik, except P.W. 1 and P.W. 2 other witnesses like P.Ws. 4 and 7 were introduced after thought to falsely support the case of prosecution as without their presence and statements no prosecution case would be made out against the accused-appellant though none of them were really present in the alleged place of occurrence as per the FIR. Mr. Bhwmik also submits that though the victim first entered in the house of Abinash (P.W. 2) but he was tendered by the prosecution while he appeared before the Court for examination, from which it can be presumed that said P.W. 2 denied to make any statement in support of the prosecution case and tendering of P.W. 3, Rabiul Hossain also creates a doubt regarding the case of the prosecution. From the evidence of P.W. 1, Rajubala, the wife of Abinash, P.W. 2, it is evident that the victim only narrated, inter alia, that while she was going for her work a man pulled her by her hands and she ran to the house of Abinash. Except the said statement she did not narrate anything to P.W. 1, which she stated in her evidence in the Court. The same should be treated as exaggeration of the alleged story and the duty of the learned trial court was to analyse those exaggerated evidences which he failed to do and it was also the duty of the learned trial court to disbelieve the victim informant on that ground and give the benefit of those exaggerations to the accused-appellant. Mr. Bhowmik further submits that the story of attempting to rape her by the accused-appellant and put his hand over her mouth so that she could not shout and she somehow managed to free herself from his clutch and ran towards the house of Abinash (P.W. 2) with her petticoat and blouse only being her saree was lying in the jungle is nothing but a concocted story. Had there been anything happened she would have narrated the said story to P.W. 1 being she is a woman, if not P.W.2. Finally, Mr. Bhowmik, learned senior counsel submits that the accused-appellant has already suffered R.I. for 11 months out of 3 years. According to him, even if the entire story of the prosecution keeping aside the improved and contradictory version is accepted, at best a case under Section 354 read with Section 511 of the I.P.C. is made out against the accused-appellant and prescribed punishment for which is one year, i.e. half of the punishment prescribed for the offence under Section 354 IPC. The accused-appellant is if not entitled to an acquittal simplicitor then also he is entitled to acquittal on benefit of doubt.

In support of his contention Mr. Bhowmik has referred the cases of S.P. Mallik v. State of Orissa and Anr. 1982 Cri.LJ. 19, Hanuman v. State of Haryana and the case of Damodar Behera and Anr. v. State of Orissa 1996 Cri.LJ. 346.

9. Mr. A. Ghosh, learned Addl. Public Prosecutor, on the other hand, supporting the impugned judgment and order submits that the victim being a rustic woman is not aware about the procedural aspect of law and the matter being a sexual offence she might initially consider that the said incident should not be brought to the Court but could be settled within the locality and that maybe the reason for delay in lodging the FIR, which should be overlooked by the Court of law and which is actually done by the learned trial court. There was no wrong committed by it condoning such delay. He also submitted that it is not necessary for the victim to state each and everything relating to the incident in the FIR. The prosecution examined the witnesses whose names were divulged at the time of investigation and from the evidence of the prosecution witnesses and according to him the case is made out against the accused-appellant under Section 376 (1) read with Section 511IPC which the prosecution accordingly proved through its witnesses and the learned trial court did not commit any wrong convicting and sentencing the accused-appellant. Therefore, no interference is called for by this Court so far the order of conviction and sentence passed by the learned trial court is concerned. However, Mr. Ghosh finally submits as confronted by this Court, that even if for the reasons this Court disbelieve the prosecution story so far the offence committed under Section 376 read with Section 511 IPC, then also a clear case under Section 354 read with Section 511 IPC is made out against the accused-appellant.

10. For proper evaluation of the submissions of the learned Counsel for the parties and appreciation of evidences on record on the basis of which the learned trial court convicted and sentenced the accused-appellant, it would be proper to re-produce the salient portion of the statements of the prosecution witnesses herein under:

10 (a). P.W. 1, Rajubala Das stated in her evidence that about four years back while she was performing her daily work victim Anita Das came to her house and being asked by her Anita told that while she was going for her work a man pulled her by her hands and for that she ran to her (P.W. 1) house.

10(b). P.W. 2, Abinash Ch. Das and P.W. 3, Rabiul Hossain were tendered by the prosecution (sic).

10(c). P.W. 4, Abdul Khaleque stated in his evidence that on 21.5.2002 at about 5 a.m. after performing his night duty while he was moving towards the Boxanagar Bus Stand and reached near to a pond nearby the electricity office he found a lady moving ahead of him about 50 cubits away and found the accused Jakir Hossain moving behind her and also saw that Jakir Hossain caught hold the said lady, pulled her clothes and forcibly took her to the near by jungle and was trying to remove her clothes and at that time a passenger jeep from Boxanagar side was moving along the road. Seeing the said vehicle the accused Jakir Hossain left the lady and hide himself from the vision of the passengers and taking the advantage of that the lady ran to the house of Abinash Ch. Das.

In his cross, he stated that police questioned him regarding the incident in the evening on the date of the incident, i.e. 21st day of May, 2002. He also stated that he made a statement to the police that accused Jakir Hossain took the lady to the jungle. But the said statement was not available in his statement recorded under Section 161 Cr.P.C. In his cross he also stated that none moved the road when he was watching the incident and after the incident he did not visit the house of Abinash Das though the distance of the house of Abinash Das would be approximately 40 meter from the place where he stood to see the alleged occurrence.

10(d). P.W. 5 (victim) in her statement stated that she found Jakir Hossain, who obstructed her way and while she pleaded for allowing her to go he did not allow her rather he started pulling her clothes and thereafter forcibly took her to the nearby cremation area, which was a jungle and then pulled out her saree and forcibly put her on the ground and then laid over her. At that time a Commander jeep came along the road from Boxanagar to Agartala. She also stated that Jakir Hossain tried to rape her and though seeing the vehicle he paused for a while but put his hand over her mouth so that she could not shout. Somehow she managed to free herself from his clutch and ran towards the house of Abinash Das (P.W. 2) with her petticoat and blouse and her saree was lying in the jungle. She met with the wife of Abinash Das, Smti Rajubala Das (P.W. 1), whose name was not known to her at the relevant time and as asked by Rajubala she narrated the incident to her and from there she went to the house of Abani Sarkar in whose house she was working. She also narrated the incident to him, her (victim) husband Babul Dasgupta and her in-laws. She also stated in her statement that she informed the incident to Abdul Maleque and also to Kanu Miah of her village and they assured her of some settlement but nothing was done and then she made a written complaint regarding the incident to the police station as written by one Bhuban Das (P.W.6), her maternal uncle.

In her cross, she stated she did not mention in her complaint that Jakir Hossain took her to the cremation ghat and removed her clothes. She stated inter alia that from the house of Abinash Das she went to the house of Abani Sarkar and narrated the incident. But the same was not found in her 161 statement. In her cross she further stated that after reaching home she narrated the incident to her husband and in-laws. But the same was also not available in her 161 statement.

10(e). P.W. 6, Bhuban Das was produced by the prosecution being the scribe of the FIR.

10(f). P.W. 7, Abdul Maleque in his statement stated that four years back on one evening victim came to his house and informed him that she also came in the morning while he was not there. She further informed him that early in the morning she was going to a house to work as a maid-servant near the private cremation (mandir) while accused Jakir Hossain caught hold of her and applied force upon her and she was taken to the nearby jungle and her clothes were removed by the accused Jakir Hossain and she also requested to him to do something for her and in that regard they talked in the evening but nothing could be done and accordingly, he advised her to lodge a police case.

In his cross he stated that he was not questioned by the police regarding the incident.

10(g). P.W. 8, Kanti Lal Choudhury, I/O, of the case stated in his statement that on 23.5.2003 while he was posted as S.I. at Kalamchoura Police Station he received a written complaint from the victim at about 1720 hrs. and registered the same as P.S. Case No. 18/03 and thereafter investigated about the alleged incident and recorded the statement of the witnesses and submitted the report.

In his cross he stated that he did not record the statement of the informant on the date of the alleged incident and there is also no explanation in the case diary why her statement was not recorded on 23.5.2002 or 24.5.2002. He also stated that he did not record the statement of Abani Sarkar or any of his relatives and he did not seize any document to satisfy himself as to whether Abdul Khaleque Miah, the witness was actually employed as a forest guard on the relevant day or not.

11. This Court has given anxious consideration to the rival submissions of the learned Counsel as well as the evidence on record and the impugned judgment and order whereby and whereunder the accused-appellant has been convicted under Section 376 (1) read with Section 511IPC and sentenced to suffer R.I. for a period of three years and a further fine of Rs. 3,000/- and i/d. R.I. for another period of one year. From the prosecution story and the judgment of the learned trial court the basic question which comes for decision before this Court is whether there was any attempt for committing rape or sexual intercourse upon the victim without her consent by the accused-appellant or the accused-appellant made attempt for outraging her modesty. For considering the aforesaid aspect, firstly a duty casts upon the Court to examine what is the meaning of ‘attempt’ and when the same is complete then question arises, what is ‘rape’ and what is ‘modesty’.

12. After proper scrutiny of the Penal Code it is nowhere found that the word ‘attempt’ is defined like the word ‘hurt’ as defined in Sec-tion319, ‘theft’ inSection378, ‘cheating’ in Section 415, ‘murder’ in Section 300 of IPC etc. Therefore, this Court has to take the assistance from the statement of law in “Halsbury’s Laws of England,” Vol. 9, page 259 which defines-

Any overt act immediately connected with the commission of an offence, and forming part of a series of acts which, if not interrupted or frustrated, would, if the offence could be committed, end in the commission of the actual offence, is, if done with a guilty intent, an attempt to commit the offence, whether the offence which is attempted is one that could or could not have been committed. Merely to make preparations for the commission of an offence is not to attempt to commit the offence. An act, in order to be a criminal attempt, must be immediately and not remotely, connected with and directly tending to the commission of an offence.

It would be evident from Cunningham v. State 44 Miss. 658 (1874) that the doctrine of attempt to commit a substantive crime is one of the most important and at the same time most intricate titles of criminal law. There is no title, indeed less understood by the Courts, or more obscure in the text books than that of attempts. The law of attempt is a vast area, taking within its ambit numerous fact situations and varying principles. Attempt is an intentional preparatory action, which ultimately fails to reach its object. As stated in O.P. Srivastava, Principles of Criminal Law (Lucknow: Eastern Book Co., 1997) at page 29 ‘attempt’ is a preliminary crime. The term ‘attempt’, however, means the direct movement towards the commission of crime after necessary preparations have been made.

13. From the aforesaid discussion it can be easily said that ‘attempt’ is nothing but a preliminary crime, failure to commit the substantive crime. For example: When A tried to kill B with the help of deadly weapon and when A was going to give the blow on B by the said deadly weapon, B ran away. As a result, A could not fulfil his intention for committing the crime of murder, but fulfilled the ‘attempt’. Or A group of dacoit entered into a bank for looting the money and when they were putting the money in their bags and intended to leave the place at that moment police arrived at the spot and arrested them. As a result, they could not complete the crime of dacoity but they completed the offence attempt to commit dacoity.

14. Now, this Court is to see what is ‘rape’ and what is’ modesty’. The offence ‘rape’ is defined differently in different jurisdictions. A basic element of rape that most definitions embody is sexual intercourse with a woman without her consent. Since Section 375 of the IPC fails to expressly mention the requirement of a mental element while defining the offence, it becomes a duty of a Court to examine whether the basic principle actus non facit reum nisi mens sit rea holds true when it comes to rape. However, sexual intercourse by a man with a woman cannot be considered as ‘rape’. The basic requirement to constitute the offence is the sexual intercourse must be without consent or forcibly, in other way it can be said ‘rape’ is a crime which violates the autonomy of a woman.

15. In Damodar Behera and Anr. (supra), modesty’ is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. It is the re-serve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C & P 817.

In the case of State of Punjab v. Major Singh , the Apex Court had examined what constitutes the act of outraging the modesty of woman. The relevant portion of the aforesaid judgment relating to outraging of modesty is quoted herein below:

(5) Intention and knowledge are of course states of mind. They are nonetheless facts which can be proved. They cannot be proved by direct evidence. They have to be inferred from the circumstances of each case. Such an inference, one way or the other, can only be made if a reasonable man would, on the facts of the case make it. The question in each case must, in my opinion, be: will a reasonable man think that the act was done with the intention of outraging the modesty of the woman or with the knowledge that it was like to do so? The test of the outrage of modesty must, therefore, be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In considering the question, he must imagine the woman to be a reasonable woman and keep in view all circumstances concerning her, such as, her station and way of life and the known notions of modesty of such a woman. The expression ‘outrage her modesty’ must be read with the words “intending to or knowing it to be likely that he will”. So read, it would appear that though the modesty to be considered is of the woman concerned, the word “her” was not used to indicate her reaction. Read all together, the words indicate an act done with the intention or knowledge that it was likely to outrage the woman’s modesty, the emphasis being on the intention and knowledge.

In Hanuman (supra) the Apex Court in para 2 of the said law report considered in what circumstances the accused will get the benefit of the exaggerated story narrated by the complainant/witness. Para 2 of the said judgment is re-produced herein below:

2. Mr. Marwah, who appears on behalf of the appellant has criticized the evidence led by the prosecution on various grounds. The complainant, Nirmala, stated in her evidence that she was on way to her field for collecting jowar, but it is said that there was no jowar crop on the land at the relevant time. Learned Counsel further argues that Nirmala had no injury on her person, that Net Ram, who is alleged to have seen the occurrence, was not examined in the case, that even the investigating officer was not examined as a witness and that the evidence of the complainant is not corroborated as indeed it ought to have been corroborated in view of the fact that she is a prosecutrix in regard to an offence under Section 354. We see no substance in any of these submissions, but we are inclined to the view that the complainant has somewhat exaggerated the story. The benefit whereof must go to the appellant. It would there be appropriate to alter the appellant’s conviction from Section 354 to Section 352 of the Penal Code. We order accordingly and set aside the substantive sentence imposed on the appellant. The sentence of fine and the sentence in default will, however, remain. The fine, if recovered shall be paid to the complainant Nirmala.

16. In S.P. Mallik (supra) considering the decision of the Apex Court in Major Singh (supra), it has been observed that though S.P. Maiiik, a high ranking police officer allegedly put his hand on a belly of a female doctor, by itself could not be construed to indicate that the criminal was using criminal force within the meaning of Section 354IPC for the purpose of committing an offence or injury or annoyance and held that the action of the accused could not be held to be an act of criminality, intentional or deliberate, but a pure accident and hence the action of the accused would not amount to offence under Section 354 IPC when the basic ingredients of Section 354 had not been proved.

17. Mr. Bhowmik, learned senior counsel mainly relied on the case of Damodar Behera (supra) wherein the accused after removing the sari of the victim ran away on seeing some persons and as no material showing the accused were determined to have sexual intercourse in all events, the Orissa High Court set aside the conviction and sentence imposed upon the accused in that case. He particularly relied on paragraphs 7,8,9 and 11. For proper appreciation of his submission, it would be better to quote the aforesaid paragraphs of the said decision.

7. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provisions dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt although it fails of success, must create alarm, which of itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not a great as if the act had been committed, only half the punishment is awarded.

8. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ‘attempt’ is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choicer. Preparation consists in devising or arranging the means or measures necessary of the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation.

9. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but following short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, combined with the doing of some act adopted to, but falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation if the act attempted. The illustration given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.

11…But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowehere 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 being as a class. It is a virtues 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 modesty is likely to be outraged is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object….

18. Taking into consideration the submission of the learned Counsel for the parties and the law report as noticed above, this Court tried to scrutinize the prosecution evidence and found that the victim though in her FIR mentioned that delay in lodging the FIR was caused for getting social justice from the village matabbars but none of the matabbars of the village except P.W. 7, Abdul Maleque, was examined. P.W. 7 though partly corroborated the statement of the victim in his chief, but in cross he specifically stated that he was never questioned by the police regarding the alleged incident meaning thereby he made his statement for the first time before the court though from the record it is available that his statement was recorded by the police. Therefore, if the said P.W. 7 is to be believed then the I/O. has to be disbelieved, hence it would be proper to disbelieve P.W. 7 in part. Accordingly, this Court is doing so. P.W. 5 (victim) also stated that she narrated the incident to Rajubala (P.W. 1) including the name of the accused-appellant but the statement of Rajubala as discussed above would show that the victim did not narrate the name of the accused-appellant to Rajubala (P.W.1) and Abinash (P.W. 2) and the facts relating to lying of her saree in the jungle and she came to the house of Rajubala (P.W. 1) and Abinash (P.W.2) only with her blouse and petticoat, she only staled in the court regarding such facts. Had the victim went to the house of P.W. 2 with only petticoat and blouse except the saree then P.W. 1 and P.W. 2 would have stated all those facts either to the investigating authority or to the Court, which is totally absent in her statement. Not only this. According to this Court, the woman may not state the story of sexual harassment and/or outraging of modesty of her to any male member including the inmates but it is probable that she would state the said story to another woman and/or a female member of the society instantly. In the instant case even getting the opportunity of stating those alleged facts of either attempt to rape or outraging of modesty by the accused-appellant, the victim did not state anything to P.W. 1. Therefore, there can be a presumption that the facts narrated by the victim regarding pulling of her clothes and thereafter forcibly taking her to the cremation area and lying of her saree in the jungle are nothing but an exaggerated story. Therefore, according to this Court, the submission of Mr. Bhowmik, inter alia, that except P.Ws. 1 and 2 other witnesses like P.Ws. 4 and 7 were introduced on afterthought to falsely support the case of the prosecution, cannot be brushed aside and on the basis of the said exaggerated evidence of a victim it would not be proper for a Court to convict a person like the appellant. But that does not mean that the Court should totally disbelieve the story narrated by the victim (P.W.5). It would be the duty of the Court to apply the doctrine of sifting to separate the falsehood from the truth, in other way, to separate the grain from the chaff and if there are certain materials in the evidence on the basis of which Court can come to a conclusion that alleged offence is committed by the accused-appellant then the Court should not disbelieve the prosecution story only for those exggerated statements. In the instant case, what disturb the mind of this Court, is why the victim lady (P.W. 5) made allegation only against the accused-appellant and what prompted her to state the story of alleged attempt of rape publicly which will harm her chastity in the society. Unless the accused-appellant committed something wrong to her even though there is no whisper or suggestion by the defence regarding any animosity or hostility of the victim towards the accused-appellant then why the victim adverted about the accused-appellant either to P.W. 1 or to P.W. 7. In the instant case, though the FIR was lodged after two days’ delay, the prosecution story somehow creates doubt in the mind of the Court for non-production of the two charge sheeted witnesses, namely Lokesh Miah and Kanu Miah and non-examination of Abinash Sarkar, for which also the accused-appellant is entitled to get the benefit of Section 114 of the Evidence Act as the presumption regarding the case of prosecution goes against it.

19. The statement of P.W. 4, Abdul Khaleque is also not believable on the ground that P.W. 5 (victim) nowhere stated in her statement that there was any person present within the near vicinity of the alleged place of occurrence. Therefore, presence of P.W. 4, Abdul Khaleque cannot be believed and not only that while the victim (P.W. 5) lodged the information on 23.5.2002 in the evening and how P.W. 4 could be asked by the police regarding the incident in the evening of 21st May, i.e. the date of incident meaning thereby before lodging of the FIR by the victim (P W 5),f police started investigation regarding the alleged incident and there was a report before the police relating to a cognizable offence. If that is so, then the subsequent FIR lodged by the victim (P.W.5) is hit by the provision of Section 162 of the Cr.P.C. and consequently, the story narrated by P.W. 4 is also disbelievable. If the evidence of Rajubala (P.W. 1) and the evidence of Maleque (P.W. 7) are taken together, then it would be evident that the accused-appellant pulled the hand of the victim by her hand and hence P.W. 1 is to be believed as she also corroborated partly the statement of the victim (P.W.5), which proves that the accused-appellant committed an offence punishable under Section 354 read with Section 511 of IPC, not an offence under Section 376 (1) read with Section 511 IPC. Therefore, the conviction of the accused-appellant under Section 376 (1) read with Section 511 IPC and his sentence to R.I. for three years and the further fine of Rs. 3,000/- and i/d. R.I. for another period of one year awarded by the learned trial court are set aside and he is convicted for committing an attempt to outraging the modesty of the victim (P.W.5), an offence punishable under Section 354 read with Section 511 IPC and sentenced to R.I. for the period which he has already suffered before commencement of trial and after conviction during pendency of the appeal, i.e. in total about 11 (eleven) months with a further fine of Rs. 2,000/-, i/d R.I. for six months. If the fine money is realized, then the same shall be given to the victim (P.W. 5).

20. The appeal is allowed to the extent as indicated above. The appellant shall be set at liberty forthwith subject to payment of fine of Rs. 2,000/-.

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