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2004 DIGILAW 518 (GAU)

Bishnu Gupta v. State of Assam

2004-09-09

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. S.C. Biswas, learned Counsel for the Appellant and Mr. P.C. Gayan, learned P.P. 2. This appeal is directed against the judgment and order dated 31.10.97 passed by the Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 78(S) 97 (GR Case No. 105/97) convicting the accused Appellant Under Section 376(2)(f) Indian Penal Code and sentencing to rigorous imprisonment for four years and to pay a fine of Rs. 1000/- in default further rigorous imprisonment for six months. 3. This is an unfortunate incident of rape on a six year old girl. The accused Appellant Bishnu Gupta was tried for commission of offence Under Section 376(2)(f) Indian Penal Code by the Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 78 (S) 97. During trial the prosecution examined as many as six witnesses and on conclusion of the trial, the learned trial court convicted and sentenced the accused Appellant as stated above. Hence, the present appeal. 4. This being a case of rape, the entire prosecution rests on the testimony of the alleged victim Guddu Kaur aged about six years at the time of incident and seven years at the time of deposition before the court. Although PW 1 has deposed that she lived in the house along with her sister and mother, this is a two storied house and in the ground floor they had hotel business and in the first floor they resided. On the fateful day, at about 8.30 PM while the victim's mother and sister were in the shop in the down stair, the victim came to the first floor and the accused followed her and committed rape on her. The accused was known to the victim as he was a neighbour. The witness in her examination-in-chief has stated that the accused committed "bad act" on her. In her cross examination, the victim has clarified that the accused put his finger only on her private part as a result of which she had suffered from bleeding. We find that the statement of the victim is corroborated by the earlier testimony of the victim recorded Under Section 164 Code of Criminal Procedure wherein she has categorically stated that this is a case of fingering. 5. The question that arises for consideration is whether the above act of the accused amounts to an offence as defined Under Section 375 Indian Penal Code. 5. The question that arises for consideration is whether the above act of the accused amounts to an offence as defined Under Section 375 Indian Penal Code. The question that has been raised was considered by the Apex Court in a recent case of Sakshi v. Union of India and Ors. reported in (2004) 5 SCC 518 wherein it has been held that as per the existing law, fingering does not constitute rape as defined Under Section 375 Indian Penal Code. The Apex Court also turned down the prayer for judicial intervention holding that it is for the legislature to amend the laws, if they so desire. 6. In view of the above, we hold that the above act of the Appellant does not amount to an offence Under Section 376 Indian Penal Code. However, as the act of the accused Appellant amounts to an offence of outraging the modesty of a woman, the conviction of the accused Appellant is converted to one Under Section 354 Indian Penal Code. 7. It is submitted by the learned Counsel for the Appellant that the accused was initially arrested on 23.1.1997 and he was released on bail on 20.3.1997. Thereafter, the accused was again sent to jail on 31.10.1997 on his conviction. In the present case, a Misc. Case has been filed before this Court and vide order dated 17.7.98 the accused was granted bail by this Court and he was released thereafter. Thus, we find that the accused Appellant was in jail for nearly a year on his conviction. Considering the facts and circumstances of the case, the accused Appellant is sentenced to imprisonment for the period already undergone by him for the offence Under Section 354 Indian Penal Code and he need not surrender to his bail bonds. 8. The appeal stands disposed of according.