Ashim Kumar Banerjee, J.

PROSECUTION STORY

Koyel Basu (not the real name) was a student of Class-II. On September 12, 2009 at about 12 Noon she was playing outside the house of one Satya Ranjan Mondal when the accused, whom she called as Kaka, told her that her goat had got stuck near the creek. Kaka called her to accompany him so that the goat could be released. On good faith, she accompanied the accused and did not find the goat there. The accused then asked her to go to the jungle to collect fire woods. When they were returning from that place the accused forcibly took her towards the jungle and made her lie on the ground forcibly. The accused opened her panty and simultaneously removed the towel (gamcha) that was roped on his person. He touched her private part through his private part when Koyel raised alarm and managed to flee away from the place. She narrated the incident to her father and subsequently her parents accompanied her to the Police Station on the next day when she narrated the entire incident to one Anima Paul who interpreted her Bengali version in Hindi. She also narrated the incident to the learned Magistrate when her statement was recorded under Section 164. The police registered the complaint and arrested the accused and charged him with the offence under Section 376 read with Section 511 of the Indian Penal Code.

EVIDENCE

During trial Koyel was consistent although she deposed after about 3 years of the incident. She identified her signature on such statement. She denied the suggestion that the incident did not happen or that the accused was not present in the locality as he had been away for fishing work. She could not be shaken in cross-examination. P.W.2 Anima Paul acted as interpreter before the Police. P.W.3 Jayanti Biswas was the mother of the victim. She also corroborated P.Ws.1 and 2. So was P.W.4, the father of the victim. P.W.5 was the Pradhan of the Gram Panchayat. She was a seizure witness. In her presence the police had seized the alamats that she identified during trial. P.Ws.6, 7 and 8 were tendered for cross-examination. P.W.9 was the member of Zilla Parishad. He was also a seizure witness who identified the signature appearing in the alamats and the seizure memo. P.W.10 was the Head Constable who registered the FIR. P.W.11 was the Medical Officer who conducted the medical examination of the accused. P.W.12 Manjit Singh was the Inspector of police who carried out the investigation. During examination, under Section 313 Cr.P.C. the accused denied the charges. According to him, the mother of the victim took loan from him. When he asked her to return the same they falsely implicated him in the case. D.W.1 Chitaranjan Das, the father of the accused, who deposed, on the fateful day he was in the high seas along with his son-the accused for catching fish. D.W.2 was the neighbour of the accused. He did not notice the accused moving towards creek along with Koyel. D.W.3 Budheshwar Das was their neighbour. He also did not notice the accused accompanying the victim towards the creek. D.W. 4 Swapan Das deposed, the accused was accompanying him on the fateful day in the high seas for catching fish. D.W.5 Satya Ranjan Mondal did not throw any light on the issue.

JUDGEMENT AND ORDER OF CONVICTION

The learned Judge analysed the evidence in detail and ultimately held the accused guilty of the charges under Section 354 I.P.C. According to the learned Judge, in the light of the evidence adduced and taking the statement of the victim as sacrosanct it was a case of attempting to rape that could be a border line case in between the offence under Section 376/511 and Section 354 I.P.C. Since there was no penetration or any attempt for penetration the accused could be charged with the offence under Section 354 for outraging the modesty of Koyel, the victim abovenamed. The learned Judge found him guilty of the charge under Section 354 and sentenced him to suffer rigorous imprisonment for two years with a fine of Rs.2,000/- and in default, to suffer rigorous imprisonment for two months.

THIS APPEAL

Being aggrieved the appellant preferred the instant appeal that we heard on the abovementioned date.

CONTENTIONS

Mr. D. Illango, learned counsel appearing for the appellant, did not make any submission on merit. He would submit, the learned Judge convicted the appellant under Section 354 and imposed a punishment of rigorous imprisonment for two years that would be too harsh considering the backdrop. He would submit, no injury was found on the person of the accused. The victim was also not medically examined and although there was allegation of applying force. The victim also did not specifically suggest so. There was no attempt for penetration. The victim only stated, the accused touched the private parts with his private parts. Considering the above, the punishment should be reduced.

MY VIEW

I have considered the evidence in detail. I have also considered the age of the accused. He was 30 years old at the time of commission of the offence. He was in his prime youth. He did the wrong thing for that he should be repentant. The appellant was on bail during trial. He was taken to custody on October 21, 2014. Since then he is in custody. Considering the overall situation I wish to reduce the sentence.

THE RESULT

The conviction is thus upheld. The punishment is reduced to one year three months. The accused would, however, be entitled to the benefit of the period already undergone by him to his credit. He would also pay the fine that the learned Judge imposed. In case fine is paid that may be paid to the victim as a token of compensation, in default of payment, he would suffer rigorous imprisonment for two months.

The appeal is disposed of.

Let the lower court records be sent down at once. Copy of the judgment be sent to the correctional home for information and a copy be given to the convict.