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2020 DIGILAW 59 (TRI)

Md. Masuk Ali v. State of Tripura

2020-05-14

ARINDAM LODH

body2020
ORDER : Arindam Lodh, J. 1. Heard Mr. Raju Datta, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent. 2. The present appeal is directed against the judgment and order of conviction dated 10.08.2016 passed by the learned Special Judge, Unakoti Judicial District, Kailashahar, in case No. Special 34 of 2015(POCSO), whereby and where-under the appellant has been sentenced to suffer RI for 6(Six) months under Section 448 of IPC and also RI for 3 (three) years and to pay a fine of Rs. 1,000/- for committing offence punishable under Section 8 of the Protection of Children from Sexual Offences(for short POCSO) Act, 2012 with default stipulations. However, both the sentences shall run concurrently. 3. Briefly stated, the prosecution case is that, on 04.11.2015 at about 11.30 am when the victim was alone in her rented house, one person, namely, Masuk Ali, the appellant herein, had entered into the rented house of the victim to take bamboo from her father and at that time he demanded "paan"(betel-leaf). While she was looking for 'paan' the appellant, Masuk Ali had entered inside the room and touched her body from behind. A case was registered by the Officer-In-Charge of Kailashahar Women Police Station bearing registration No. 29 of 2015 dated 04.11.2015 under Sections 448/354 of IPC. During investigation, the investigating officer recorded the statements of the available witnesses. The statement of the victim girl was also recorded under Section 164(5) of CrPC. The I.O. had seized the Permanent Resident of Tripura Certificate ("PRTC" for short) of the victim to prove the age of the victim girl and subsequently, arrested the accused appellant. After completion of the investigation, the I.O.(PW-7) submitted charge-sheet against the appellant under Section 8 of the POCSO Act, 2012 and also under Sections 448/354-B of IPC. 4. Being committed, charges were framed against the appellant under Sections 448/354-B of IPC and also under Section 8 of the POCSO Act, 2012, and trial was commenced. The prosecution had examined 6(six) witnesses to establish the charges framed by the learned Special Judge, as aforestated. 5. PW -1 is the victim(name withheld). During her evidence, her age was mentioned as 18 years by the Court. The prosecution had examined 6(six) witnesses to establish the charges framed by the learned Special Judge, as aforestated. 5. PW -1 is the victim(name withheld). During her evidence, her age was mentioned as 18 years by the Court. She deposed that one day on 04.11.2015 when she was alone in their rented house, the appellant, Masuk Ali had entered into their house to purchase bamboo from her father and at that time, she was insisted to open the door. Accordingly, PW-1 had opened the door. Thereafter, the appellant had demanded 'paan'(betel-leaf) from her and while she was looking for 'paan', the appellant suddenly had touched her body from behind. Out of fear, she shouted and at that time, the appellant had fled away. Hearing hue and cry, one Bani Sinha(PW-3) whom she used to address as 'aunty' came to her room when she narrated the whole story to her. A complaint was lodged by the victim herself. The Officer- In-Charge of Women Police Station recorded her statement on the basis of which an FIR was registered (Exbt. 5). Police had seized her PRTC(Exbt. 4) and her statement was also recorded under Section 164(5) of Cr.P.C. 6. PW -2, Smti. Manchala Sinha, the mother of the victim girl deposed the facts as were narrated to her by her victim-daughter. 7. PW-3, Bani Sinha deposed before the Court that she saw accused Masuk Ali to go out from the house. She further stated that the victim was crying inside the house and told her that Masuk Ali came to their house and suddenly caught hold her from behind with ill motive to outrage her modesty. 8. PW-4, Minati Singh deposed the fact which was narrated to her by the victim-girl. 9. PW -5, Prakash Sinha stated that he heard hue and cry and came to know that Masuk Ali had outraged the modesty of the victim girl. 10. PW-6, Bimal Sinha, the father of the victim girl deposed that after the incident police had seized one PRTC of her daughter by preparing the seizure list. He put his signature on the same seizure list which was marked as Exbt. 2/2 on his identification and the PRTC was marked as Exbt. 4. 11. PW -7, Prativa Sinha, the WSI was the Investigating Officer of the case. She deposed that being endorsed with the case she started investigation and arrested the appellant. He put his signature on the same seizure list which was marked as Exbt. 2/2 on his identification and the PRTC was marked as Exbt. 4. 11. PW -7, Prativa Sinha, the WSI was the Investigating Officer of the case. She deposed that being endorsed with the case she started investigation and arrested the appellant. She recorded the statement of the victim girl under Section 161 of CrPC. PW-7 further stated that she produced the victim girl before the learned Judicial Magistrate who recorded her statement under Section 164(5) of CrPC. She prepared the hand-sketch map of the place of occurrence, seized the PRTC as stated above and after completion of investigation, she submitted charge-sheet against the accused- appellant under Sections 448/354-B of IPC and also under Section 8 of the POCSO Act, 2012. 12. Mr. R. Datta, learned counsel appearing for the appellant has submitted that, in the instant case, Section 8 of the POCSO Act cannot in any way be attracted since the age of the victim girl has not at all been proved. The incident had occurred in the month of November, 2015 and in course of her deposition i.e. on 22nd April, 2016 her age was mentioned by the Court as 18 years. But, the age of the victim girl as mentioned in the deposition sheet appears that at the time of the incident she was attaining the age of 17 years 8 months approximately. 13. More so, according to the learned counsel for the appellant, the PRTC is not a valid document to prove the age of a person. In buttress his submission, Mr. Datta, learned counsel has pressed into service a decision of the Apex Court, Jarnail Singh v. State of Haryana, reported in (2013) 7 SCC 263 : ( AIR 2013 SC 3467 ) where it was held thus: "21. In order to support his contention, that. the prosecutrix was not a minor at the time of occurrence, learned counsel for the appellant placed reliance on the judgment rendered in Sunil v. State of Haryana, AIR 2010 SC 392 . Ordinarily, we would have extracted the observations on which reliance was placed, but for reasons that would emerge from our conclusion, we consider it inappropriate to do so. 22. Ordinarily, we would have extracted the observations on which reliance was placed, but for reasons that would emerge from our conclusion, we consider it inappropriate to do so. 22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under: "12. Procedure to be followed in determination of Age." (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) The matriculation or equivalent certificates, if available; and in the absence whereof; (ii) The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) The birth certificate given by a corporation or a municipal authority or a panchayat; "(b) And only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year, and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." 14. Further, Mr. Datta, learned counsel for the appellant has submitted that Section 8 of the POCSO Act, 2012 should not lie in the instant case against the accused-appellant for the reason that the statement of the victim girl does not disclose any of the ingredients which are required to establish the offence under Section 8 of POCSO Act. He further contended that the appellant with good intention to purchase bamboo from the father of the victim girl had entered into the rented house of the victim and for such entry the appellant should not be treated as house-trespasser. Mr. Datta, learned counsel for the appellant has further submitted that it is a fit case for acquittal. 15. On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent has submitted that it is proved beyond any shadow of doubt that the appellant had entered into the rented house of the victim girl in absence of her parents. The appellant had insisted the victim girl to open the door of the room and then he demanded 'paan' from her and while she was looking for the said paan(betel-leaf), the appellant had touched her body from behind. According to the learned Addl. P.P.; the conviction as declared by the learned Special Judge should be upheld and affirmed. 16. I have given my thoughtful consideration to the submissions of the learned counsel appearing for the parties and also have perused the documents. 17. For appreciation of the evidence, I have meticulously scrutinized the deposition of the victim girl, who deposed before the Court, as PW-1. 16. I have given my thoughtful consideration to the submissions of the learned counsel appearing for the parties and also have perused the documents. 17. For appreciation of the evidence, I have meticulously scrutinized the deposition of the victim girl, who deposed before the Court, as PW-1. According to me, the victim girl appears to be very categoric to describe the incident. She has clearly stated in her evidence that at the first instance she was not ready to open the door, but, Masuk Ali, the appellant herein insisted her to open the door to enter into the room. On repeated insistence, she opened the door and thereafter, the appellant had demanded paan(betel-leaf) from her and while she was looking for that betel-leaf, the appellant had touched her body from behind. In her examination-in-chief, she has stated that: "....., he suddenly came from behind and touched my body and out of fear I shouted and at that time he fled away from our house". 18. PW -3, just immediately after the incident, hearing the hue and cry raised by the victim girl, had rushed to the place of occurrence when PW-1 had narrated the entire incident to her. Thus, the statement of PW-3 is the evidence of res gestae under Section 6 of the Evidence Act, and there is no reason to disbelieve the statement of PW-3. According to this Court, this evidence of the victim girl is wholly established beyond any shadow of doubt. 19. Firstly, keeping in mind the submission of learned counsel for the appellant, let me examine as to whether the age of victim is below 18 years. I have given my thoughtful consideration to the authoritative judgment of the Supreme Court in the case of Jarnail Singh(supra) where the Apex Court has categorically stated that in every case concerning a child or a juvenile in conflict with law, the best procedure to determining the age of a child is the matriculation or equivalent certificates and if it is not available, then, the date of birth certificate from the school to which the child first attended, and in absence whereof, the birth certificate issued by the corporation or the municipal authority or Panchayat. It is further observed that in the event of non-availability of these aforementioned documents, the Court may seek the medical opinion from a duly constituted medical board which declares the age of the juvenile or the child. (Emphasis supplied) 20. In the instant case, I find the investigating officer has collected the PRTC which should not be treated as a genuine document to prove the age of the child as a juvenile. More so, none of the witnesses including the parents of the victim girl who deposed as PWs. 2 and 6, the mother and father respectively have not stated anything specifically in their depositions that their daughter was attaining the age below 18 years at the time of the incident or that the issuing authority had recorded the date of birth of the victim in the said PRTC as per their information they furnished to the Competent Authority. Furthermore, the issuing authority of the PRTC, i.e. the author of the said document also has not been examined by the prosecution to support its contents. 21. Another important aspect is that at the time of recording the deposition of the victim girl as PW-1, the Court has mentioned the age of the victim girl as 18 years, but, when the age of the victim girl is calculated, it appears that she was attaining the age of 17 years 8 months approximately at the time of commission of the offence. More so, the mother and father of the victim-girl deposing for prosecution as PW-2 and PW-6 respectively were totally silent in regard to the age of their daughter-prosecutrix. In my opinion, in this situation, it would not be safe for this Court to come to a definite conclusion that at the time of the incident the prosecutrix was below 18 years and the prosecution has not proved the age of the prosecutrix beyond reasonable doubt. 22. The appellant herein has been convicted under Section 8 of the POCSO Act by the learned Special Judge. The relevant provisions to establish the offence are as under:- "8. Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine." Thus, to constitute an offence under Section 8 of POCSO Act, there must be sexual assault. Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine." Thus, to constitute an offence under Section 8 of POCSO Act, there must be sexual assault. The term "sexual assault' is defined under Section 7 of the POCSO Act, which is as under: "7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." 23. On a plain reading of the said section, it is understood that it provides that a person is said to commit sexual assault if he with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration. So, the term "sexual assault' under the POCSO Act relates to touching of vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person any other person, with clear sexual intent. It further says that any other act which involves physical contact but with sexual intent without penetration, also will come within the purview of the definition of 'sexual assault'. In my considered view, the term 'physical contact' as envisaged in Section 7 of the POCSO Act also relates to the touch to the vagina, penis, anus or breast of a person without penetration but with clear sexual intent. In my opinion, mere physical contact without any sort of touch to those private parts with sexual intent as envisaged in Section 7 of the POCSO Act will not come within the scope and ambit of Section 8 of the said Act. In the instant case, it reveals that the prosecutrix was totally silent which private parts of her body had been touched by the appellant. Even, she did not say that the appellant had touched her body from behind with sexual intent. In the instant case, it reveals that the prosecutrix was totally silent which private parts of her body had been touched by the appellant. Even, she did not say that the appellant had touched her body from behind with sexual intent. Thus, in the facts and circumstances of the case, apart from the doubtful age of the prosecutrix that she was below 18 years at the time of the incident, the prosecution has also failed to establish the essential ingredients of Section 8 of the POCSO Act. As such, in my opinion, the conviction of the appellant as declared by the learned Special Judge under Section 8 of the POCSO Act is not warranted and unsustainable in law. 24. While pronouncing the judgment, the learned Addl. P.P. has drawn my attention to a decision passed by a learned single Judge of this Court in the case of Pulin Bihari Roy v. State of Tripura, (2012) 6 GLR 138 : 2012(5) GLT 58, wherein, the learned Single Judge after taking into account the provision of law under Section 222 of the Code of Criminal Procedure has laid down that when a charge under Section 376 of IPC has been framed, in that case, having not found the ingredients of Section 376, the court cannot return a judgment of conviction and sentence under Section 354 of IPC because, according to learned Single Judge, "Composition of offence under Section 354 of IPC is different from the formation of the offence under Section 376 of IPC and hence, the former cannot be regarded as a minor offence vis--vis the latter.". I have seen, while arriving at this finding the learned Single Judge has relied upon the observation made by the Supreme Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 : ( AIR 2001 SC 921 ) and the learned Single Judge had particularly relied upon para 16 of the judgment, which reads as under: "16. What is meant by "a minor offence" for the purpose of Section 222 of the Code" Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence." 25. I have given my conscious thought to the decision of the learned Single Judge of this Court, passed in Pulin Bihari Roy(supra). I have noticed that while deciding the case of Pulin Bihari Roy(supra), the Court was not noticed the decision of the Apex Court in the case of Tarkeshwar Sahu v. State of Bihar (now Jharkhand), (2006) 8 SCC 560 (AIR Online 2006 SC 383), where the Apex Court had faced with similar situation. It was also a case where the trial court convicted the appellant under Sections 376/511 of IPC and the appeal being preferred, the High Court had dismissed the appeal. On scrutiny of the evidence on record, the Apex Court came to the finding that the essential ingredients of Section 376 of IPC were not fulfilled and having found the ingredients of Sections 354 and 366 of IPC, the appellant was convicted under Sections 354 and 366 of IPC and awarded sentence accordingly. At para 8 of the decision of Tarkeshwar Sahu(supra), the Supreme Court observed thus:- "8. Looking to the gravity of the offence, we have ourselves examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, we could not persuade ourselves to take a different view than that taken by the courts below as far as the conviction of the appellant is concerned. In our considered view, the prosecution version is both truthful and credible. We are clearly of the view that the appellant had forcibly taken the prosecutrix to the gumti to outrage her modesty but before he could do anything, on raising an alarm by the prosecutrix, the father of the prosecutrix and other villagers had assembled there and she was rescued." Then, the Supreme Court had considered the definition of 'rape' under Section 375 of IPC. Thereafter, at paragraphs 22, 23, 24 and 25, the Supreme Court observed thus: "22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. Thereafter, at paragraphs 22, 23, 24 and 25, the Supreme Court observed thus: "22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable. 23. In the instant case, the accused has been charged with Sections 376/511, IPC only. In the absence of charge under any other section, the question now arises-whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a girl. In a situation like this, we would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it. Section 222, CrPC reads as under: "222. When offence proved included in offence charged.- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied." 24. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied." 24. In this section, two illustrations have been given which would amply describe that when an accused is charged with a major offence and the ingredients of the major offence are missing and ingredients of minor offence are made out then he may be convicted for the minor offence even though he was not charged with it. Both the illustrations given in the said section read as under: "(a) A is charged, under Section 407 of the Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under Section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406. (b) A is charged, under Section 325 of the Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that Code." Page 19 of 35 25. In Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC 173 : (1993 AIR SCW 2938)] this Court had an occasion to examine the similar question of law. In this case, the accused was charged and tried under Section 302 of the Penal Code but the ingredients of Section 302 were missing but the ingredients of Section 306 were present, therefore, the Court deemed it proper to convert the conviction of the appellant from Section 302 to Section 306, IPC. In this case, it was urged that the accused cannot be tried under Section 306, IPC because the accused were not put to notice to meet a charge under Section 306, IPC and, therefore, they are prejudiced by not framing a charge under Section 306, IPC; therefore, presumption under Section 113-A of the Evidence Act cannot be drawn and consequently a conviction under Section 306, IPC cannot be awarded. According to this Court, in the facts and circumstances, Section 306 was attracted and the appellants' conviction under Section 302, IPC was set aside and instead they were convicted under Section 306 IPC." 26. Further, in Tarkeshwar Sahu(supra), the Supreme Court had taken into account the decision of the Apex Court in Shamnsaheb M. Multtani(supra) on which the learned Single Judge of this Court had relied upon to pass the judgment of Pulin Bihari Roy(supra). The Supreme Court observed thus: "26. A three-Judge Bench of this Court in Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 : ( AIR 2001 SC 921 ) had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paras 16, 17 and 18 of the judgment, which read as under: (SCC p. 584) "16. What is meant by "a minor offence' for the purpose of Section 222 of the Code" Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence. 17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis--vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the word "cruelty' is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand'. 18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge" "After considering the case of Shamnsaheb M. Multtani(supra), the Supreme Court in the case of Tarkeshwar Sahu(supra) observed thus: "27: On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Sections 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW 1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the gumti. In this view of the matter, no offence under Sections 376/511, IPC is made out." Having held so, the Supreme Court held that: "28. In this view of the matter, no offence under Sections 376/511, IPC is made out." Having held so, the Supreme Court held that: "28. In this view of the matter, it has become imperative to examine the legal position whether the offence of the appellant falls within the four corners of other provisions incorporated in the Penal Code relating to outraging the modesty of a woman/girl under Sections 366 and 354." On evaluation of the entire evidence and materials on record, the Supreme Court in Tarkeshwar Sahu(supra) invoked the provisions of Section 222 of the CrPC and held that: "36. ...............................The appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of the Code of Criminal Procedure, the accused charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present." Having observed thus, finally, the Supreme Court had returned the finding of conviction under Sections 354/366 of IPC. 27. It is noticed that while deciding the case of Pulin Bihari Roy (supra), the learned Single Judge of this Court did not notice the discussions made by the Supreme Court in Shamnsaheb M. Multtani(supra) to trace out the discussions on application of Section 222 of CrPC which are as under: "17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302, IPC and hence the former cannot be regarded as minor offence vis--vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC(husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand". 18. As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand". 18. So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge." 28. I have meticulously gone through the decision of the judgment in Shamnsaheb M. Multtani(supra). In that case, the trial was proceeded only on the charge of Section 302 of IPC for committing murder to his wife. The trial court acquitted all the three accused including the husband of the deceased-wife. The State of Karnataka had preferred appeal before the High Court of Karnataka. The High Court "after reaching a cul-de-sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under Section 304-B of the Penal Code, 1860 and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498-A, IPC." Before the Supreme Court the question of law arose as the appellant was not charged under Section 304-B of IPC. "The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304-B IPC, without the said offence being specifically put in the charge". The crux of the matter, as I find in Shamnsaheb M. Multtani(supra) is that Section 304-B cannot be said to be a minor offence than that of Section 302 of IPC. The crux of the matter, as I find in Shamnsaheb M. Multtani(supra) is that Section 304-B cannot be said to be a minor offence than that of Section 302 of IPC. While the basic constituent of an offence under Section 302 IPC is homicidal death, that of Section 304-B IPC is dowry death and in view of Section 113-B of the Evidence Act, if the prosecution succeeds in showing that soon before her death she was subjected by the husband to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused the dowry death". Again under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."(Shamnsaheb M. Multtani(supra), SCC p. 586, para 18] In that circumstance, the Supreme Court in Shamnsaheb M. Multtani (supra) held that since the accused- husband was not given any opportunity to defend himself to rebut the presumption as may be drawn by the court under Section 113-B of the Evidence Act, and as he was defending charge under Section 302 of IPC alone, that would cause grave miscarriage of justice when he was alternatively convicted under Section 304-B of IPC and sentenced thereunder on the pretext that the evidence already on record attracted the ingredients of Section 304-B of IPC. In that eventuality, the Supreme Court sent the case back to the trial court to afford opportunity to the accused to defend his case and to decide the case in accordance with law. In that eventuality, the Supreme Court sent the case back to the trial court to afford opportunity to the accused to defend his case and to decide the case in accordance with law. Thus, in view of the law laid down in Tarkeshwar Sahu(supra) and since it was not brought to the notice of the learned Single Judge, the findings returned by the Court in Pulin Bihari Roy(supra) appears to be not persuasive to this Court, in the context of the present case, in view of the law laid in Shamnsaheb M. Multtani (supra) (by a three-Judge Bench) as well as Tarkeshwar Sahu(supra). 29. As a corollary, in view of Section 222, CrPC and keeping pace with the enunciation of law encrypted in the above authorities, it is concretised that the accused may be convicted under any minor offence, if from the proven facts and circumstances, some elements of higher offence(s) for which the accused is charged are found compatible and commensurate to the minor offence. (Emphasis supplied) 30. Coming to the context of the case in hand, the charge was framed under Section 354-B of IPC which covers the ingredients of Section 354(1)(i) of UPC, because of the findings as returned by learned Special Judge that the accused-appellant came in physical contact and made advances without the elements of assault or using of criminal force with the intention to disrobe or to compel her to be naked. 31. I have noticed that initially, in the instant case, the learned Special Judge has framed charge that included Section 354-B of IPC. But, after consideration of the evidence on record, the learned Special Judge acquitted the appellant from the said charge. This Court after careful scanning of the evidence has held that the charge under Section 8 of the POCSO Act has not been proved. But, from proven facts, it has become apparent that the accused-appellant came in physical contact with the victim-girl and made advance while he touched her body from behind to which the victim-girl reacted and shouted out of fear. 32. At this juncture, I have taken into account the Criminal Law(Amendment) Act, 2013 that came into force on the 3rd day of February, 2013 and amended as well as inserted new sections in the Indian Penal Code with regard to various sexual offences. 32. At this juncture, I have taken into account the Criminal Law(Amendment) Act, 2013 that came into force on the 3rd day of February, 2013 and amended as well as inserted new sections in the Indian Penal Code with regard to various sexual offences. These amendments were carried on in the line of recommendations made by Justice Verma Committee(JVC) which was constituted by the Government after the "Nirbhaya" incident. The Committee adopted a multidisciplinary approach interpreting its mandates expansively. The report deals with sexual crimes at all levels and with the measures needed for prevention as well as punishment of all offences with sexual overtones that are an affront to human dignity. This is on the basis that the issue of sexual assault against women is one that goes to the core of social norms and values. It created some offences, like sexual harassments, viz. coming in physical contact or advances, disrobing a woman, voyeurism, stalking and trafficking. The new Act has expressly recognized certain acts as offences which were dealt under related laws. The key objective in bringing the amendment and insertion of new sections under the Amendment Act, 2013 is to protect the women from any kinds of sex related offences against women and not to allow an accused of committing such offences to go scot-free. 33. I have also taken into account the relevant provisions under the Code of Criminal Procedure, wherein, this Court in exercise of its appellate jurisdiction is vested with the power to interfere with the finding passed by the trial Court and pass sentence on the accused person in accordance with law and also to alter the nature and extent of the sentence, however, with a rider under Section 386(b)(iii) of CrPC not to enhance the sentence without giving an opportunity to the accused of being heard. Section 386 of CrPC reads as under: "386. Section 386 of CrPC reads as under: "386. Powers of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal." 34. As I said earlier, this Court finds that the learned Special Judge had framed charge against the accused-appellant under Section 354-B of IPC, but, after appreciating the evidence, he did not find any ingredients of Section 354-B of IPC. Here, the Ld. As I said earlier, this Court finds that the learned Special Judge had framed charge against the accused-appellant under Section 354-B of IPC, but, after appreciating the evidence, he did not find any ingredients of Section 354-B of IPC. Here, the Ld. Judge committed a patent error when he failed to identify the facts as emerged from the deposition of the prosecutrix that though ingredients of Section 354-B were absent but ingredients of Section 354-A were present, and it being a minor offence, conviction could be reduced to the said minor offence. (Emphasis supplied) 35. As a matter of relevance, Section 354-A of IPC is reproduced hereunder: "354-A. Sexual harassment and punishment for sexual harassment.-(1) A man committing any of the following acts- (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both." 36. In view of Section 386 of CrPC, it is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts (Padam Singh v. State of Uttar Pradesh, AIR 2000 SC 361 ). 37. After careful scrutiny of the evidence of the victim girl (PW-1), what has transpired that the victim girl has categorically stated that in spite of her unwillingness, the appellant entered into her room; advanced suddenly and touched her body from behind. 37. After careful scrutiny of the evidence of the victim girl (PW-1), what has transpired that the victim girl has categorically stated that in spite of her unwillingness, the appellant entered into her room; advanced suddenly and touched her body from behind. This conduct of the appellant is quite indicative of his demand for sexual favours. Coming in physical contact with a woman without her wish, and advance thereof with a demand for sexual favours, definitely had arisen a situation which was unwelcome and explicit sexual overtures. For such acts and conduct, the appellant is punishable under Section 354-A of IPC. (Emphasis supplied) 38. In the earlier paragraphs, I have already held that the present case before this Court does not attract the ingredients of Section 8 of the POCSO Act. Therefore, the conviction and, sentence under Section 8 of the POCSO Act, 2012 to suffer RI for three years and a fine of Rs. 1,000/- is set aside and quashed. 39. The conviction under Section 448 of IPC as returned by the learned Special Judge is not interfered with and is, therefore, upheld and affirmed. However, the order of sentence to suffer imprisonment for 6(six) months is modified to the extent that the appellant shall pay a fine of Rs. 1,000/- (Rupees one thousand) only for committing offence under Section 448 of IPC. 40. In totality of the facts and circumstances, and particularly, taking into account the evidence of the prosecutrix (PW 1), in my opinion, the appellant has committed an offence under Section 354-A of IPC. As such, by this judgment he is convicted under Section 354-A of IPC. While declaring sentence, I have kept in mind that the appellant is a day labour having no criminal antecedents. Section 354-A of IPC prescribes imprisonment of either description for a term which may extend to one year, or with fine, or with both. I am inclined to impose punishment upon the appellant to pay a fine of Rs. 10,000/- (Rupees ten thousand) for committing offence under Section 354-A of IPC instead of imprisonment. Since no charge was framed under Section 354-A IPC, I declare the above sentence under Section 354-A of IPC in exercise of power under Section 386 of CrPC. 41. I am inclined to impose punishment upon the appellant to pay a fine of Rs. 10,000/- (Rupees ten thousand) for committing offence under Section 354-A of IPC instead of imprisonment. Since no charge was framed under Section 354-A IPC, I declare the above sentence under Section 354-A of IPC in exercise of power under Section 386 of CrPC. 41. Accordingly, it is ordered: ORDER (i) The conviction and sentence imposed upon the appellant under Section 8 of the POCSO Act, 2012, passed by the learned Special Judge, Unakoti Judicial District, Kailashahar is set aside and quashed; (ii) The conviction under Section 448 of IPC as declared by the learned Special Judge is upheld and affirmed. However, the order of sentence to suffer imprisonment for 6(six) months is modified to the extent that the accused-appellant shall pay a fine of Rs. 1,000/- for committing offence under Section 448 of IPC within a period of 2(two) months from today; in default, he shall suffer rigorous imprisonment for 6(six) months; (iii) The appellant, Md. Masuk Ali is convicted under Section 354-A of IPC and is sentenced to pay a fine of Rs. 10,000/- (Rupees ten thousand) for committing offence punishable under Section 354-A of IPC. He shall pay the entire fine amount as determined here-in-above within a period of two months from today i.e. the appellant has to deposit the fine money as imposed by this Court on or before 14.07.2020 in the Court of learned Special Judge, Unakoti Judicial District, Kailashahar, in default to make payment of such fine money of Rs. 10,000/- (Rupees ten thousand) within the aforesaid stipulated period, the appellant shall suffer rigorous imprisonment for 1 (one) year under Section 354-A of IPC. (iv) The appellant has not been discharged from his bail bond and it is extended upto 14.07.2020. On failure to pay fine as indicated above, the appellant shall surrender before the learned Special Judge on 15.07.2020 to suffer the imprisonment in the above terms. In that case, learned Special Judge will take necessary steps in accordance with law. 42. Accordingly, the instant appeal stands allowed in part, in the above terms. 43. Send down the L.C. Records forthwith.