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2007 DIGILAW 460 (ORI)

Sheikh Bashir Khan v. State

2007-06-20

L.MOHAPATRA

body2007
JUDGMENT L. MOHAPATRA, J. : This appeal is directed against the judg¬ment and order dated 5.12.1989 passed by the learned Addl. Ses¬sions Judge, Jeypore at Nowrangpur in S.C. No.29 of 1989 convict¬ing the appellant for commission of offence under Section 354 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of one year. 2. Case of the prosecution is that the victim Gomati Majhee while taking bath alone in the river on 8.12.1987, the ap¬pellant came from her back, caught hold of her, carried her to the nearby field, squeezed her breasts and attempted to commit rape. When she shouted one Hara Majhi came to her rescue and the appellant fled away. Investigation was taken up and after comple¬tion of investigation, charge-sheet for commission of offences under Sections 376/511 of the I.P.C. had been filed. Plea of the appellant was denial of the entire occurrence. The prosecution examined seven witnesses in order to prove the charges and none was examined on behalf of the defence. Learned Additional Ses¬sions Judge on analysis of evidence adduced before it was of the view that the offence under Sections 376/511 of the I.P.C. is not made out,but offence under Section 354 of the I.P.C. is clearly established and accordingly convicted the appellant for commis¬sion of offence under Section 354 of the I.P.C. 3. Learned counsel appearing for the appellant challenges the judgment of conviction and sentence on the ground that there is inconsistent in the statement of the victim, in the F.I.R. and her statement recorded during her examination in Court. Learned counsel drew attention of the Court to the F.I.R. and submitted that the victim alleged in the F.I.R. that on the date of occur¬rence the appellant suddenly came from back side of the victim, caught hold of her shoulder and threw her on the ground, whereas in her deposition before the Court she has stated that while she was taking bath in the river in knee deep water, the appellant came from back side and caught hold her shoulder, carried her to a distance, where after she was thrown on the ground. In view of such variation of the statement with regard to the place of occurrence, the entire evidence of P.W.1 should be disbelieved. In view of such variation of the statement with regard to the place of occurrence, the entire evidence of P.W.1 should be disbelieved. Apart from the above, it was contended by the learned counsel that the evidence of the victim is not corroborated by any evi¬dence and it will be unsafe to sustain the order of conviction on the statement of the victim without any corroboration. Learned counsel for the State submits that the conviction can lie solely on the evidence of the victim if she is found to be trust worthy and her statement is believed and no corroboration is necessary in such a case. 4. In the F.I.R. the victim alleged that on the date of occurrence she was taking bath alone in a river, the appellant came from her back side, put his hand on the shoulder, laid her on the ground and requested for sexual intercourse. It is also alleged that attempt was made by the appellant to commit rape. In her deposition she has stated that on the date of occurrence while taking bath, the appellant came from back side, lifted her to a distance where after she threw her on the ground and at¬tempted to commit rape. She has specifically stated that the appellant squeezed her breast resulting in injury and the manner in which he attempted to commit rape. So far as this part of deposition of P.W.1 is concerned, there is nothing in the cross-examination to disbelieve the same. The only variance in the statement of the victim deposed in the Court is the place where an attempt to rape was committed. The victim sustained injuries on her breasts which is corroborated by the evidence of her hus¬band as P.W.4. From the evidence of P.W.7, Circle Inspector, Umerkote, it appears that the victim was sent to Dabugaon Primary Health Center for medical examination. The medical report which has been exhibited as Ext.2/1 clearly shows that there were six abrasions on the left breast and multiple injuries on the right breast. On consideration of such evidence on record, I do not find any reason to interfere with the order of the trial Court convicting the appellant for commission of offence under Section 354 of the I.P.C. 5. On consideration of such evidence on record, I do not find any reason to interfere with the order of the trial Court convicting the appellant for commission of offence under Section 354 of the I.P.C. 5. So far as sentence is concerned, it is contended by the learned counsel that the appellant was in custody for about 54 days and he should be sentenced to fine only. On verification of the record, it is found that after submission of charge-sheet the appellant surrendered and was in custody for a period of more than 50 days. Section 354 of the I.P.C. provides that an accused convicted in the said offence should be awarded imprisonment for a term which may extend to three years or with fine or with both. The occurrence took place in the year 1987 and in the meantime 20 years have passed. The appellant having remained in custody for more than 50 days, I am of the view that imposition of fine only will be sufficient and adequate punishment. 6. I, therefore, dispose of the appeal in modifying the sentence and direct that the appellant shall be sentenced to imprisonment for the period already undergone and shall pay a fine of Rs.100/-, in default, he shall undergo further rigorous imprisonment for a period of four months. Appeal disposed of.