Chunu Munda v. State of Assam and Another — 1998 DIGILAW 199 (GAU)

This appeal arises out of judgment dated 10.7.91 passed by the Addl. Sessions Judge, Jorhat in Sessions Case No.27 (J-J)/89 thereby holding the appellant guilty of offence punishable under section 376 read with section 511 of the IPC and sentencing him to undergo three years RI with fine of Rs.500/- or in default of payment of fine to suffer further three months imprisonment. Being aggrieved by the same, the appellant/accused preferred this appeal. ' 2. The accused is a tea garden labourer so also the prosecutrix father was serving in Kathonibari Tea Estate. It was on 24th November, 1989 at about 2.00 PM while the prosecutrix Smti Kusum Kumari Chetri was cutting grass in a paddy field, the accused appellant is said to have approached her to help her work but, she declined. It was possibly a pretext, the prosecutrix was hugged and embraced and fell to the ground. Her blouse was open and mouth sustained injury, an attempt was made to rape her so goes the allegation. An FIR was lodged by the prosecutrix at Mariani PS and on the basis- of the report, a case under section 376/511 of the IPC was registered and taken under investigation. The prosecutrix was examined by PW 4, who found the following injuries: " 1. Mild swelling and pain over the left elbow joint position surface. 2. Abrasion about 4 cm in length and 2 cm in breadth over right side of the lower lip. The injuries were simple in nature, fresh and caused by blunt weapon. 3. In all five witnesses were examined by the prosecution to prove the charge but the accused/appellant was of plain denial. The trial Court, however, found him guilty and sentenced him to undergo three years RI as already noted above. 4. The learned counsel appearing on behalf of the appellant/accused, at the very outset, submitted firstly, he is not challenging the acts attributed to the accused as established but, his submission is that even if the acts as established are taken into account, the offence would fall within the provision of section 354 of the IPC rather than under section 376/511 of the IPC as held by the trial Court. In either case he craved for benefit of Probation of Offenders Act which, ought to have been extended to the accused/appellant in view of the age as recorded by the trial Court at the time of recording of his statement under section 313 of the CrPC. 5. Mrs K. Deka, the learned PP appearing on behalf of the respondent State referred to section 376 of the IPC and submitted that it is punishable with life imprisonment, as such, section 6 of the Probation of Offenders Act is not attracted to the present case. The object of section 6 of the said Act is to ensure that juvenile offenders are not sent to jail for offences which are not so serious as to warrant imprisonment for life with a view to prevent them from further contamination by coming into the hands of the criminals of the jail and it was for this reason that the Supreme Court in Daulat Ram vs. State of Harayana reported in AIR 1972 SC 2434 propounded the need for a liberal/lenient approach in extending the benefit of probation under section 6 of the Act. Subsequently, the Supreme Court pointed out that this provision should not be mistaken with undue leniency in undeserving cases. It was a case of rape where the accused in his early 20s committed rape of his neighbour's wife (see AIR 1980 SC 249 , Phul Singh vs. State of Haryana). 6. Keeping both these judgments in view, a pragmatic balanced approach is called for the social manual of accused and the prosecutrix in the backdrop of the tea garden situated in the far-flung area. In the medical evidence is any indication all that the medical witness PW 4 found, was an abrasion measuring 4x2 cm on the lower side of the lips and there was swelling over the left elbow joint. The injury apparently was simple in nature and as stated by the witness, caused by blunt weapon. 7. I am fully conscious of the fact that no corroborative evidence as such is needed and the Apex Court in Bhoginbhai Hirijibhai vs. State of Gujrat reported in AIR 1983 SC 753 has exploded the myth of corroboration. Going by these injuries and taking the evidence of PW 3 as a whole. 7. I am fully conscious of the fact that no corroborative evidence as such is needed and the Apex Court in Bhoginbhai Hirijibhai vs. State of Gujrat reported in AIR 1983 SC 753 has exploded the myth of corroboration. Going by these injuries and taking the evidence of PW 3 as a whole. The question that looms large is the nature of the offence committed by the accused could it even be an admitted rape as opposed by the learned counsel for the appellant or it could be a case under section 354 of the IPC. At this stage, the evidence of the prosecutrix PW1 assumes importance as has rightly been also noted by trial Judge which are-as follows : "Now let us see the evidence of PW 1 prosecutrix whose evidence is very much material in a case of present nature. On her examination by the prosecution, she has categorically stated the whole story of the FIR that while she was collecting grass from the paddy field on the date of occurrence near about 1 KM away from her house along with her younger sister who after staying there for a while came back to her house as she was very must thirsty and thereafter accused Chunu Munda had approached her and wanted to help her in collecting grass, but as she refused to take any help, thereafter the accused tried to rape her by embracing hue and putting her on the ground and forcibly placing her hands on her back side and also closing her mouth with a piece of cloth so that she cannot raise any hue and cry. It is also specifically stated that the accused thereafter laid on her and touched breast and open her blouse and petticoat and tries to rape her. It is also stated that the threatened to kill if she raised any hulla. It is also deposed by her that in this way the accused tried to rape her, but she somehow managed to free herself from he grip of the accused by using her all physical force and it also stated that in course of occurrence she sustained injury on her lips while the accused tried to off her mouth by putting piece of cloth and also sustained injury in left hand. It is also deposed by her that after freeing herself from the grip of the accused she raised hue and cry and began to run away towards her house and informed her mother about the incident. Though the accused followed her, but she could not be caught by him. It is also stated that at time there was none at the place of occurrence to see the occurrence or to hear the voice raised by her. It is also deposed by her that on the next day she along with her mother went to Mariani Police Station and informed the matter to the police verbally who has reduced the same into writing where she has put her thumb impression. She has further stated that as per direction of police she visited the doctor who has examined her and found the injury on her body. It is deposed that police visited her house and seized one torn petticoat and blouse and a piece of cloth used by her at the time of occurrence. The defence has cross-examined her at length, but she could not be dislodged on material particulars except some minor contradictions. Though it has been suggested by the defence that the accused did not try to rape her, but it was denied by the prosecutrix. It is also denied by the prosecutrix that she sustained injury by falling upon hard substance as suggested by the defence. It is also denied by her that she had stolen away grass from the paddy field of the accused and hearing the voice 'Chore', 'Chore' raised by the accused she ran away and fell down and sustained injuries. On the other hand, it is also established by the defence in cross that the prosecutrix went to collect grass from the field on the date of occurrence." 8. The learned Judge referred to the medical evidence and disposed of the point in one sentence, the doctor, who has examined found her injury on her body but, what is the use of this evidence how far it helps in making out prosecution case. There is no attempt on appreciation of this evidence of PW 4. The learned trial Judge should have discussed at some length how this evidence helps in determining the offence charged. There is not a sentinel of medical evidence to hold the offence of attempt to commit rape as proved. There is no attempt on appreciation of this evidence of PW 4. The learned trial Judge should have discussed at some length how this evidence helps in determining the offence charged. There is not a sentinel of medical evidence to hold the offence of attempt to commit rape as proved. It is not to suggest that such medical evidence is a must but when medical witness is examined it is expected of. the witness to explain the injuries as found by him or her. The injuries have already been noted above, and so far as these injuries and the opinion of the doctor and the statement of PW 4 are concerned, it does not at all help in determining the nature of the offence. We are left with the sole testimony of the prosecutrix. It is not disbelieving her for whatever she has stated. It remains to be seen whether it was an attempted molestation or rape. So far as rape is concerned, the medical evidence does not support but, it does support the act of outrageous the modesty of the prosecutrix and indecent assault made, therefore, the submission by the learned counsel for the appellant cannot be brushed aside. It is evident from the record that the accused, on Court's own observation was below 21 years of age on the date on which his statement under section 313 of the CrPC was recorded by the trial Court without being too lenient or too rigid in the matter, at the distance of time, almost a decade has passed over, whether it would be in the interest of justice ? Whether it would serve any purpose in sending the accused to jail ? Or he should be released on probation ? Taking the objection raised by the learned PP that offence of rape is punishable under section 375 of the IPC but, the charge framed in the instant case was not under section 376 of the IPC per se but, under section 376 read with section 511 of the IPC. By reading section 511 of the IPC, it cannot be said that it is punishable with life imprisonment. The punishment prescribed is half of life imprisonment in any case whether it is under section 354 or 376 read with section 511 IPC. The offence is not punishable with life imprisonment, therefore, the section 6 is clearly attracted. By reading section 511 of the IPC, it cannot be said that it is punishable with life imprisonment. The punishment prescribed is half of life imprisonment in any case whether it is under section 354 or 376 read with section 511 IPC. The offence is not punishable with life imprisonment, therefore, the section 6 is clearly attracted. The only question that still remains to be considered is, as in case of Full Singh vs; State of Haryana (supra), the Supreme Court has reduced the sentence from 4 years to 2 years R/ I in case of an accused who is 22 years of age. Dealing with the question of sentencing efficacy, the Supreme Court observed that punitive therapeutics must be more enlightened than the blind strategy or prison severity. 9. Considering the long lapse of time and the social background of the accused and the prosecutrix who is now stated to have married. To my mind, the ends of justice would be substantially met with the accused instead of being sent to jail right now, he is to be released on probation of good conduct for a period of two years. Accordingly, the accused/appellant shall furnish a written undertaking that in the event of breach of bond, he shall appear before this Court for receiving the sentence as may be imposed. The appellant/accused shall furnish personally a sum of Rs.5,000/- with one surety of like amount for good conduct and behaviour before the Chief Judicial Magistrate, Jorhat. 10. The appeal stands disposed of in terms indicated above. It is only in the event of breach of bond of probation of good conduct that the accused may be called for receiving the sentence. This appeal arises out of judgment dated 10.7.91 passed by the Addl. Sessions Judge, Jorhat in Sessions Case No.27 (J-J)/89 thereby holding the appellant guilty of offence punishable under section 376 read with section 511 of the IPC and sentencing him to undergo three years RI with fine of Rs.500/- or in default of payment of fine to suffer further three months imprisonment. Being aggrieved by the same, the appellant/accused preferred this appeal. ' 2. The accused is a tea garden labourer so also the prosecutrix father was serving in Kathonibari Tea Estate. Being aggrieved by the same, the appellant/accused preferred this appeal. ' 2. The accused is a tea garden labourer so also the prosecutrix father was serving in Kathonibari Tea Estate. It was on 24th November, 1989 at about 2.00 PM while the prosecutrix Smti Kusum Kumari Chetri was cutting grass in a paddy field, the accused appellant is said to have approached her to help her work but, she declined. It was possibly a pretext, the prosecutrix was hugged and embraced and fell to the ground. Her blouse was open and mouth sustained injury, an attempt was made to rape her so goes the allegation. An FIR was lodged by the prosecutrix at Mariani PS and on the basis- of the report, a case under section 376/511 of the IPC was registered and taken under investigation. The prosecutrix was examined by PW 4, who found the following injuries: " 1. Mild swelling and pain over the left elbow joint position surface. 2. Abrasion about 4 cm in length and 2 cm in breadth over right side of the lower lip. The injuries were simple in nature, fresh and caused by blunt weapon. 3. In all five witnesses were examined by the prosecution to prove the charge but the accused/appellant was of plain denial. The trial Court, however, found him guilty and sentenced him to undergo three years RI as already noted above. 4. The learned counsel appearing on behalf of the appellant/accused, at the very outset, submitted firstly, he is not challenging the acts attributed to the accused as established but, his submission is that even if the acts as established are taken into account, the offence would fall within the provision of section 354 of the IPC rather than under section 376/511 of the IPC as held by the trial Court. In either case he craved for benefit of Probation of Offenders Act which, ought to have been extended to the accused/appellant in view of the age as recorded by the trial Court at the time of recording of his statement under section 313 of the CrPC. 5. Mrs K. Deka, the learned PP appearing on behalf of the respondent State referred to section 376 of the IPC and submitted that it is punishable with life imprisonment, as such, section 6 of the Probation of Offenders Act is not attracted to the present case. 5. Mrs K. Deka, the learned PP appearing on behalf of the respondent State referred to section 376 of the IPC and submitted that it is punishable with life imprisonment, as such, section 6 of the Probation of Offenders Act is not attracted to the present case. The object of section 6 of the said Act is to ensure that juvenile offenders are not sent to jail for offences which are not so serious as to warrant imprisonment for life with a view to prevent them from further contamination by coming into the hands of the criminals of the jail and it was for this reason that the Supreme Court in Daulat Ram vs. State of Harayana reported in AIR 1972 SC 2434 propounded the need for a liberal/lenient approach in extending the benefit of probation under section 6 of the Act. Subsequently, the Supreme Court pointed out that this provision should not be mistaken with undue leniency in undeserving cases. It was a case of rape where the accused in his early 20s committed rape of his neighbour's wife (see AIR 1980 SC 249 , Phul Singh vs. State of Haryana). 6. Keeping both these judgments in view, a pragmatic balanced approach is called for the social manual of accused and the prosecutrix in the backdrop of the tea garden situated in the far-flung area. In the medical evidence is any indication all that the medical witness PW 4 found, was an abrasion measuring 4x2 cm on the lower side of the lips and there was swelling over the left elbow joint. The injury apparently was simple in nature and as stated by the witness, caused by blunt weapon. 7. I am fully conscious of the fact that no corroborative evidence as such is needed and the Apex Court in Bhoginbhai Hirijibhai vs. State of Gujrat reported in AIR 1983 SC 753 has exploded the myth of corroboration. Going by these injuries and taking the evidence of PW 3 as a whole. The question that looms large is the nature of the offence committed by the accused could it even be an admitted rape as opposed by the learned counsel for the appellant or it could be a case under section 354 of the IPC. Going by these injuries and taking the evidence of PW 3 as a whole. The question that looms large is the nature of the offence committed by the accused could it even be an admitted rape as opposed by the learned counsel for the appellant or it could be a case under section 354 of the IPC. At this stage, the evidence of the prosecutrix PW1 assumes importance as has rightly been also noted by trial Judge which are-as follows : "Now let us see the evidence of PW 1 prosecutrix whose evidence is very much material in a case of present nature. On her examination by the prosecution, she has categorically stated the whole story of the FIR that while she was collecting grass from the paddy field on the date of occurrence near about 1 KM away from her house along with her younger sister who after staying there for a while came back to her house as she was very must thirsty and thereafter accused Chunu Munda had approached her and wanted to help her in collecting grass, but as she refused to take any help, thereafter the accused tried to rape her by embracing hue and putting her on the ground and forcibly placing her hands on her back side and also closing her mouth with a piece of cloth so that she cannot raise any hue and cry. It is also specifically stated that the accused thereafter laid on her and touched breast and open her blouse and petticoat and tries to rape her. It is also stated that the threatened to kill if she raised any hulla. It is also deposed by her that in this way the accused tried to rape her, but she somehow managed to free herself from he grip of the accused by using her all physical force and it also stated that in course of occurrence she sustained injury on her lips while the accused tried to off her mouth by putting piece of cloth and also sustained injury in left hand. It is also deposed by her that after freeing herself from the grip of the accused she raised hue and cry and began to run away towards her house and informed her mother about the incident. Though the accused followed her, but she could not be caught by him. It is also deposed by her that after freeing herself from the grip of the accused she raised hue and cry and began to run away towards her house and informed her mother about the incident. Though the accused followed her, but she could not be caught by him. It is also stated that at time there was none at the place of occurrence to see the occurrence or to hear the voice raised by her. It is also deposed by her that on the next day she along with her mother went to Mariani Police Station and informed the matter to the police verbally who has reduced the same into writing where she has put her thumb impression. She has further stated that as per direction of police she visited the doctor who has examined her and found the injury on her body. It is deposed that police visited her house and seized one torn petticoat and blouse and a piece of cloth used by her at the time of occurrence. The defence has cross-examined her at length, but she could not be dislodged on material particulars except some minor contradictions. Though it has been suggested by the defence that the accused did not try to rape her, but it was denied by the prosecutrix. It is also denied by the prosecutrix that she sustained injury by falling upon hard substance as suggested by the defence. It is also denied by her that she had stolen away grass from the paddy field of the accused and hearing the voice 'Chore', 'Chore' raised by the accused she ran away and fell down and sustained injuries. On the other hand, it is also established by the defence in cross that the prosecutrix went to collect grass from the field on the date of occurrence." 8. The learned Judge referred to the medical evidence and disposed of the point in one sentence, the doctor, who has examined found her injury on her body but, what is the use of this evidence how far it helps in making out prosecution case. There is no attempt on appreciation of this evidence of PW 4. The learned trial Judge should have discussed at some length how this evidence helps in determining the offence charged. There is not a sentinel of medical evidence to hold the offence of attempt to commit rape as proved. There is no attempt on appreciation of this evidence of PW 4. The learned trial Judge should have discussed at some length how this evidence helps in determining the offence charged. There is not a sentinel of medical evidence to hold the offence of attempt to commit rape as proved. It is not to suggest that such medical evidence is a must but when medical witness is examined it is expected of. the witness to explain the injuries as found by him or her. The injuries have already been noted above, and so far as these injuries and the opinion of the doctor and the statement of PW 4 are concerned, it does not at all help in determining the nature of the offence. We are left with the sole testimony of the prosecutrix. It is not disbelieving her for whatever she has stated. It remains to be seen whether it was an attempted molestation or rape. So far as rape is concerned, the medical evidence does not support but, it does support the act of outrageous the modesty of the prosecutrix and indecent assault made, therefore, the submission by the learned counsel for the appellant cannot be brushed aside. It is evident from the record that the accused, on Court's own observation was below 21 years of age on the date on which his statement under section 313 of the CrPC was recorded by the trial Court without being too lenient or too rigid in the matter, at the distance of time, almost a decade has passed over, whether it would be in the interest of justice ? Whether it would serve any purpose in sending the accused to jail ? Or he should be released on probation ? Taking the objection raised by the learned PP that offence of rape is punishable under section 375 of the IPC but, the charge framed in the instant case was not under section 376 of the IPC per se but, under section 376 read with section 511 of the IPC. By reading section 511 of the IPC, it cannot be said that it is punishable with life imprisonment. The punishment prescribed is half of life imprisonment in any case whether it is under section 354 or 376 read with section 511 IPC. The offence is not punishable with life imprisonment, therefore, the section 6 is clearly attracted. By reading section 511 of the IPC, it cannot be said that it is punishable with life imprisonment. The punishment prescribed is half of life imprisonment in any case whether it is under section 354 or 376 read with section 511 IPC. The offence is not punishable with life imprisonment, therefore, the section 6 is clearly attracted. The only question that still remains to be considered is, as in case of Full Singh vs; State of Haryana (supra), the Supreme Court has reduced the sentence from 4 years to 2 years R/ I in case of an accused who is 22 years of age. Dealing with the question of sentencing efficacy, the Supreme Court observed that punitive therapeutics must be more enlightened than the blind strategy or prison severity. 9. Considering the long lapse of time and the social background of the accused and the prosecutrix who is now stated to have married. To my mind, the ends of justice would be substantially met with the accused instead of being sent to jail right now, he is to be released on probation of good conduct for a period of two years. Accordingly, the accused/appellant shall furnish a written undertaking that in the event of breach of bond, he shall appear before this Court for receiving the sentence as may be imposed. The appellant/accused shall furnish personally a sum of Rs.5,000/- with one surety of like amount for good conduct and behaviour before the Chief Judicial Magistrate, Jorhat. 10. The appeal stands disposed of in terms indicated above. It is only in the event of breach of bond of probation of good conduct that the accused may be called for receiving the sentence.