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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE, JORHAT

Present ;- Mrs. Suchandra Bhattacharjee,

Addl. Sessions Judge, Jorhat

JUDGMENT IN SESSIONS CASE NO.103 (JJ) OF 2014.

G.R.CASE NO. 1029/2014

Committing Magistrate :

Mr.Sakti Sharma ,

Sub divisional Judicial Magistrate,

(Sadar) Jorhat.

State of Assam

Vs.

1. Sri Bijoy Das

Son of Sri Jatin Das

2. Sri Biren Mal

Son of Sri Anil Mal

3. Sri Ananta Naidu

Son of Sri Bipul Naidu

All are residents of Nimona Tea Estate

District-Jorhat………………Accused persons.

APPEARANCE :

Sri Siddique Ali, Addl. Public Prosecutor – for the State.

Sri Rintu Goswami , Sri Dipranjan Chetia and Sri Prasanta Tamuli

Advocates – for the accused persons.

Charge framed under section 395/354 of I.P.C.

Date of recording prosecution evidence :10.07.15. 01.08.15,07.09.15,31.10.15.

Date of recording statement U/S 313 Cr P C : 08.12.2015.

Date of Argument : 30.03.2016

Date of Judgment : 08.04.2016

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JUDGMENT

1] The prosecution case in brief is that on 11.05.2014 , informant Malsawmzuali

Zadeng and Keneselhou, lodged an FIR at Lihubari police out stating inter alia that on

10.05.14, when they after doing marketing at Lichubari were returning home through

Nomuna Tea Estate then a group of six boys restrained them and by pointing a knife to

them snatched away their mobile phone, gold chain, ATM Card and cash amount of

Rs.1700/-(Rupees seventeen hundred) from their purse. They also forced them to pose and

took their photographs in a very obscene manner. The accused persons also misbehaved

with one of the complainant, a girl, by touching her breast and buttock.

2] After receiving the FIR, the in charge Lichubari out post made an entry vide G.D.

entry No.176 dtd. 11/5/2014 and forwarded the same to Jorhat police station for

registering a case. After receiving the F.I.R, officer in charge Jorhat police station,

registered a case vide Jorhat P.S. Case No. 713/2014, u/s 395/354 IPC. Thereafter,

investigating officer took up the investigation of the instant case and after completion of

the investigation, submitted charge sheet against the accused persons namely Bijoy Das,

Biren Mal, Ananta Naidu, Josheph Tapno and Madan Bhuyan under section 395/354 IPC.

But as accused persons, namely Joseph Topno and Madan Bhuiyan were found juvenile

therefore, they were sent to Juvenile Justice Board to face the trial. The learned lower after

appearance of the accused persons before it, committed the case to the Sessions Court as

the case is exclusively triable by Court of Sessions. After committal of the instant case, the

learned Sessions Judge, Jorhat, transferred the instant case to this court for disposal. This

court after hearing the learned counsels for both sides and perusing the materials on

record framed charge under section 395/354 IPC against the accused persons and read

over and explained the contents of the charge to them to which they pleaded not guilty

and claimed to be tried.

3] The prosecution to prove its case examined as many as six witnesses. The

accused persons were examined under section 313 Cr. P C wherein they denied the

prosecution case and also denied to adduce any evidence in their defence.

4] Points for determination in this case are :

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Whether the prosecution, beyond all reasonable doubt, could prove the

fact that the accused persons namely Bijoy Das,Biren Mal and Ananta Naidu on

10.05.2014 at Nomuna Tea Estate, under Jorhat police station committed

dacoity?

Whether the prosecution, beyond all reasonable doubt, could prove the

fact that the accused persons assaulted one of the complainants, a woman,

intending to outrage her modesty?

5] I have heard the learned counsels for both the sides and considered the entire

materials available on record.

6] Learned Addl. Public Prosecutor, stated that prosecution proved its case beyond all

reasonable doubt. The Learned counsel stated that there is total corroboration between the

evidence of both the complainants and there is on the record to disbelieve their evidence.

It is submitted that both the complainants i.e. P.W1 and P.W2 categorically deposed that

the accused persons snatched away their belongings by showing them knife and also

outraged the modesty of the P.W1.

7] On the other hand, the learned counsels appearing for the accused persons

submitted that prosecution failed to prove its case by adducing any cogent evidence. It is

contended by the learned counsels that there is discrepancy in the evidence of

complainants and the investigating officer regarding the seized articles. It is submitted that

the sized articles as revealed from evidence of complainants (P.W1 and P.W2) differs from

the seized articles as revealed from the perusal of evidence of investigating officer (P.W6)

and the said fact cast serious doubt on the prosecution case. It is further submitted that

there is a delay of one day in lodging the FIR and the said has not been explained, which

further appears to cast doubt on the prosecution.

8] Before proceeding any further let at the outset, the entire evidence on record be

perused properly.

9] PW 1 Malsawmzuali Zedang, one of the complainants deposed that she could

identify all the three accused persons but does not know them by their names. On

10.05.2014 at about 5.00 to 6.00 p.m. she went to Lichubari for marketing along with her

friend, Keneiselhou. After doing marketing they both decided to go to Namuna village /Tea

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garden to take a walk. When they entered into the tea garden (Nomuna) her friend saw

the accused persons and while they were chatting with each other, all the accused persons

along with three persons came near to them with knife and snatched away her gold chain

from her neck and also snatched away her purse and took out Rs. one thousand and seven

hundred and her ATM card from her purse and then they threatened them to kill them. She

further deposed that the accused persons also outraged her modesty by touching her

breast and buttock. The accused persons also snatched away the mobile phone of her

friend. She deposed that the accused person who is standing in the middle(Ananta Naidu)

asked her to give him her phone then she told him that she did not have any phone with

her and it is in the hostel then the aforesaid accused person (Ananta Naidu) went along

with them to the hostel on a bicycle and when they reached near the boy’s hostel then she

asked the aforesaid accused person(Ananta Naidu) and her friend to wait over there and

then she rushed inside her hostel and told about the incident to her friends and then the

boys of the boys’ hostel and her friends went to Namuna Tea garden/village but till then all

the accused persons fled away from the place of occurrence. She further deposed that the

accused persons also threatened them to pose for them and after forcing them to pose for

them they clicked their photo. After the incident, on the subsequent day, she lodged the

FIR against the accused persons at Lichubari police out post. She proved the FIR as Ext 1

and Ext1 (1) as her signature. She deposed that after lodging the FIR she was sent for

medical examination by the police. She further deposed that during investigation police

seized the following articles from her, two ATM cards, one Big Bazar card, one Library card

and one gold chain. She proved the seizure list as Ext 2 and Ext 2(1) as her signature. She

further deposed that the incident took place on Saturday and on Sunday her friend, who

was there with her on the date of the incident, went along with other friends to Lichubari

and there they saw the accused persons and after seeing them they caught all the accused

persons and recovered her ATM card and her gold chain from their possession and after

finding all the articles she lodged the FIR against the accused persons. She has seen all the

seized articles in the court today and identified the same. She proved two ATM cards as

Material Ext 1, the Library card as Material Ext 2, the Big Bazaar card as Material Ext 3 and

the gold chain as Material Ext 4.

In her cross-examination she deposed that the incident took place on 10.05.2014

and on the subsequent she lodged the FIR. She admitted that she has not explained the

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cause of delay in lodging the FIR and further admitted that she has not mentioned in the

FIR or before the police that the accused persons handed over the stolen articles to her

friend on the subsequent day of the incident i.e. on the date of lodging the FIR. She denied

that she has deposed falsely that the aforesaid stolen articles were handed over by the

accused persons to her friend. She deposed that the accused persons are not known to her

and she has not mentioned the name of the accused persons in the FIR or before the

police during the investigation. She denied that police did not call her for identification of

the accused persons and further denied to have not stated before the police that the

accused persons snatched away the mobile phone of her friend and asked for her mobile

phone. She denied that she has deposed falsely that the accused persons snatched away

her purse and gold chain and then took Rs. One thousand seven hundred from her purse or

that the accused persons forced her to pose and then they clicked their photographs. She

deposed that she informed about the incident to her teachers on the same day of the

incident and informed to her warden about the incident on its subsequent day. She denied

to have not stated to the police that one of the accused persons in the middle (Ananta

Naidu) followed them to the hostel or that her friend went to Lichubari and recovered

stolen articles from the accused persons.

10] P.W.2 Keniselhou , is the another complainant. He deposed that he can identify all

the accused persons standing in the dock but does not know their names. On 10.05.14 at

about 4.00 p.m. he along with his friend Malsawm Zuali came out from their hostel and

from there they went to Lichubari for marketing and after doing the marketing he along

with his aforesaid friend went to Namuna Tea garden to take a walk as they thought to

come back to their hostel by following the route of Namuna Tea garden and when they

reached to Namuna Tea estate they sat under a tree to have chat, then suddenly six

persons came near to them having dao and knives in their hands and snatched away the

purse of his friend and also snatched away her gold chain from her neck and then snatched

away his mobile and also forced and threatened them to pose before them and then they

clicked their photograph. Thereafter, the accused persons touched the breast of his friend

and then they asked his friend to give them her mobile phone and then his friend told to

them that she does not have the mobile phone with her. He deposed that he cannot

identify the exact person who asked for the mobile of her friend, but all the accused

persons standing in the dock were involved in the incident. When the accused persons

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asked for the mobile phone from his friend she told to them that she is having her mobile

phone at her hostel and if they want it then she can give it from her hostel. Thereafter, one

of the accused persons followed them to the hostel and when they were near the boy’s

hostel, then his friend told to them to wait there and then she went inside and then she

informed about the incident to their hostel friends and in the meantime the accused

persons who was waiting with him near the hostel ran away, then on the same day, friends

of his hostel informed about the incident to the police. Then on the subsequent day, he

along with his other friends went to Lichubari and while they there having tea at Lichubari,

he saw one of the accused person, i.e. the middle person standing in the dock (Ananta

Naidu) and then he caught him and threatened him to hand him over to the police and

asked him to give him back all the stolen articles. Thereafter, the aforesaid accused person

called up another accused person and asked him to bring back the stolen articles and then

one of the accused persons (Biren Mal) came with the stolen articles i.e. the ATM Card of

his friend and his library card and when the aforesaid articles were handed over by the

accused person, then he took it to the police station and handed over it to the police and

lodged the FIR against the accused person. He proved the FIR as Ext 1 and Ext1(2) as his

signature. He further deposed that when the accused persons snatched away the gold

chain of his friend then she held it tightly due to which the gold chain got broken and the

accused persons could take away the broken piece of the gold chain of his friend. He

deposed that police seized the following articles in his presence; ATM card proved as

Material Ext1, Library Card proved as Material Exbt.2, Big Bazar card proved as Material

Exbt.3, part of the gold chain of her friend proved as Material Ext 4 and prepared seizure

list wherein he put his signature. He proved the seizure list as Ext 2 and Ext 2(2) as his

signature.

In his cross examination he admitted that he does not remember the exact

date of lodging the FIR or the exact date when the accused handed over the aforesaid

article to him. He denied to have not mentioned in the FIR or before the police that on the

subsequent day of the incident he saw one of the accused persons at Lichubari and caught

him and asked him to hand over the stolen articles or that the accused person standing in

the middle of the dock (Ananta Naidu) called up one of the accused person and one of the

accused persons (Biren Mal)brought ATM card of his friend and his library card. He denied

to have not stated before the police that the accused person took away the broken piece of

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the gold chain of his friend or that the broken piece of the gold chain which was remained

with his friend was handed over to the police. He further denied that the accused persons

did not snatch away any articles from them and also denied that he did not identify the

accused persons before the police. He admitted that he has not stated before the police

that the accused persons touched the breast of his friend or the accused persons forced

them to pose and then they clicked their photographs. He denied that he deposed falsely

that the accused persons were having dao and knife in their hands. He deposed that there

is no register maintained in the hostel regarding going out and coming out into the hostel,

though there is a time fixed of coming back to the hostel but that is relaxed on Saturday

and Sunday. He deposed that he does not remember that whether he stated before the

police that the accused persons demanded the mobile phone from his friend. He deposed

that he informed about the incident to his teacher on the date of the incident but could not

inform his warden.

11] P.W. 3 Dr. Miss Kamala Das, deposed that on 13.05.14 while she was working as

Medical Officer at Baghchung Primary Health Centre, Malsawmzuali Zadeng was brought

by one WBC 727 Chanchala Borah of Lichubari police out post. She examined her and

found the following;

1) No any sign of symptoms of rape except history of molestation.

2) Her age is about 23 years.

3) No sign of violence on her private parts.

She proved the report as Exbt. 3 and Exbt.3(1) as her signature.

In her cross examination she deposed that on examination of the victim girl

she did not find any external injury on her body.

12] P.W.4 Sri Debanga Bhushan Bora, deposed that he does not know the accused

persons personally but he saw them once at Lichubari police out post after the incident. He

deposed that he knows the victim and the complainant. During the incident he used to stay

at Baghchung MSW Hostel of Bosco institute. About one year back, while he was staying at

MSW hostel, one day while he was in his room, the complainant and the victim informed

him that some persons snatched away their belongings while they were coming by crossing

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Namuna village. After coming to know about the incident he along with other friends and

the complainant went to the place of occurrence and after going there they did not find

anything there. On the subsequent day, he came to know that Kene identified the accused

persons at the police out post and thereafter he went to Lichubari police out post and

police in his presence seized two state bank ATM cards, one library card and one Big Bazar

card and one 4 inch chain. He proved the seizure list as Ext 2 and Ext 2(3) as his signature.

He proved the Material Exbt.1 as the two state bank ATM cards, Material Exbt.2 as one

library card, Material Exbt. 3 as the Big Bazar card and Material Exbt. 4 as one 4 inch chain.

In his cross examination he deposed that on the previous day of the incident

when they went to the place of occurrence they did not find anything there. He admitted

that he has not seen the police to seize any article and he does not know wherefrom the

seized articles were brought by police. He admitted that he put his signature on list on

being asked by the police.

13] P.W.5 Sri Ananda Kumar Pal, deposed that he knows only the accused standing in

the dock wearing white T.Shirt (Biren Mal) and does not know other two accused persons.

He knows the complainant Keneiselhou and the victim girl Malsawmzuali Zadeng. He

deposed that in the year 2014, he does not remember the exact date the complainant

Keneiselhou and the victim Malsawmzuali Zadeng both went to take walk to Namuna Tea

estate. After returning from there, both of them informed him that while they were

walking in Namuna Tea estate which is situated near Namuna village, some persons caught

them and forcibly took away their belongings like gold chain, ATM cards, money, mobile

phone and purse and also abused them and behaved indecently with Malsawmzuali

Zadeng. After coming to know about the same he advised them to inform the police.

Accordingly, he along with the complainant went to Lichubari police out post and then from

there along with the police personnel he along with the complainant went to the place of

occurrence but there they did not find any one or any article. On the subsequent day of the

incident, when he went to market along with his wife ,he met the complainant Keneiselhou

at Lichubari hotel and he told him that one of the boys (accused Biren Mal) who stole away

their belongings has come to return their belongings and asked him to compromise the

matter and there at Lichubari hotel he saw the boy who was wearing T.shirt (Biren

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Mal).Accordingly, he advised the complainant to inform the police and accordingly police

came and took away the accused(Biren Mal)along with them.

In his cross-examination he denied to have not stated before the police that on the

date of the incident he along with the complainant and the police personnel went to

Namuna Tea Estate and after going there he did not find anything or that he suggested the

complainant to inform the police about the accused (Biren Mal) or that after suggesting the

complainant to inform the police he informed the police or thereafter police came and took

away the accused Biren Mal along with them. He admitted that that the accused Biren Mal

did not tell him anything. But he saw the library card and the ATM card in the hand of

accused Biren Mal. He denied that the complainant did not tell him that the accused Biren

Mal came to the Lichubari hotel to return all the belongings stolen or he did not see the

accused Biren Mal at Lichubari hotel.

14] P.W.6 S.I. Jiten Gogoi, deposed that on 11.05.14 while he was working as in

charge at Lichubari police out post, complainant Keneiselhou and Malsawmzuali Zadeng

lodged a written FIR and after receiving the said FIR he entered the same vide G.D .entry

No.176 dtd 11.05.14 and forwarded it to Jorhat police station for registering a case, which

was accordingly registered as Jorhat P.S. Case No.713/14, under section 395/354 IPC and

thereafter he was entrusted with the investigation in the instant case. He proved his

signature on the FIR with note as Ext 1 (3) and Ext1(4) as the signature of the then officer

in charge, Jorhat police station S.I. Prodip Bora which he knows. After being entrusted with

the investigation, he recorded the statement of the complainant at the police station. The

complainant while lodging the FIR produced some articles namely two state bank ATM

cards, one library card, one Big Bazar card and one 4 inch chain which were snatched away

by the accused persons from him and his friend and the same was seized by him in

presence of the witnesses. Thereafter, the victim/complainant was sent for medical

examination. He proved Material Exbt.1 as two ATM cards, Material Exbt.2 as one library

card, Material Exbt. 3 as one Big Bazar card and Material Exbt. 4 as one 4 inch chain.

Thereafter, he visited the place of occurrence situated at Namuna tea estate and prepared

a sketch map of the place of occurrence. He proved the sketch map as Ext 4 and Exbt.4 (1)

as his signature. He deposed that he informed about the incident to garden authority

(Mazdoor Sangha) and on the subsequent day of the incident the accused persons

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appeared before the police out post and confessed about the entire incident before him

and also confessed the fact that they handed over the stolen articles to the complainant.

Thereafter, the accused persons were arrested. After completion of the investigation he got

transferred and accordingly he handed over the case diary to the officer in charge, Jorhat

police station. He deposed that after handing over the case diary by him S.I.Hemendra

Singha was entrusted with the investigation in the instant case and as revealed from the

case diary that Hemendra Singha after being entrusted with the investigation, again

recorded the statements of the complainant and examined one witness Ananda Kr.Pal.

After recording the aforesaid witnesses and after finding sufficient materials against the

accused persons S.I. Hemendra Singha submitted charge sheet against the accused

persons under section 395/354 IPC. He proved the charge sheet as Ext 5 and Exbt.5 (1) as

the signature of S.I.Hemendra Singha which he knows. He proved the extract copy of the

G.D. entry No.176 dtd 11.05.14 as Ext 6.

In his cross examination he deposed that on 11.05.14 at about 11 a.m. the written

FIR in the instant case was received by Lichubari police out post and thereafter it was sent

to Jorhat police station and accordingly a police case was registered on the same day at

about 2.30 p.m. He deposed that he started the investigation of the instant case on

11.05.14 after 2.30 p.m. He recorded the statement of the victim/complainant on 11.05.14

and also on the same day he recorded the statement of three witnesses in presence of

whom the articles which were produced by the complainant were seized. Thereafter, he did

not record the statement of the aforesaid witnesses during the entire investigation. He

deposed that on 11.05.14 at about 8.30 p.m., the accused persons appeared at Lichubari

police out post. On 12.05.14 the accused persons were forwarded for custodial detention.

He deposed that no articles were seized from the accused persons. He admitted that no

prayer was made by him for identification parade of the accused persons. He deposed that

he has not mentioned in the case diary regarding the fact that when the accused persons

appeared before the police out post, the complainant were also present at the police out

post, though the complainant/victim were present at the outpost when accused appeared

and not also mentioned that the accused persons were identified by the complainant. He

confirmed that complainant Malsawmzuali Zadeng did not state before him that the

accused persons handed over the stolen articles to her friend which was accordingly

handed over to the police or that all the accused persons snatched away the mobile phone

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and also asked for her mobile phone or that her friend after the incident went to the

Namuna Tea Estate and recovered stolen articles from the accused persons or that accused

Ananta Naidu touched her breast but confirmed that she stated to him that accused

persons snatched away mobile phone of her friend. He further confirmed that she stated

that the accused persons touched her breast. He confirmed that Keneiselhou did not state

before him that he saw one of the accused person near Lichubari hotel and asked him to

hand over the articles to him but confirmed that he stated to him that one of the accused

persons called another accused person who brought the stolen ATM card and library card

of his friend. He further confirmed that Keneiselhou did not state before him that the

accused persons took away the piece of gold chain of his friend or that remaining piece of

gold chain of her friend was handed over to the police or that accused person touched the

breast of his friend or that the accused persons forced them to pose before them and

thereafter they clicked photo of them.

DISCUSSION, DECISION AND REASONS THREOF:

15] It is pertinent to mention that to bring home the charge against the accused

persons under section 395 IPC, the relevant facts required to be proved by the prosecution

is that the accused persons are five or more in numbers and that such number of persons

have either committed or attempted to commit theft or committed extortion by causing or

attempting to cause death or hurt or wrongful restraint or putting any person in instant

fear of death or of instant hurt or of instant wrongful restraint. Furthermore, to bring home

the charge against the accused persons under section 354 IPC prosecution has the burden

to prove that the accused persons have assaulted or used criminal force to any woman,

with the intention to outrage her modesty.

16] After the perusal of entire evidence on record, it appears that the prosecution to

bring home the charges against the accused persons is mainly relying on the direct

evidence as adduced by both the complainants of the instant case, who have been

examined as P.W 1 and P.W 2. Hence, let the evidence of both the aforesaid witnesses be

sifted properly to ascertain that how far they have been able to prove the relevant facts as

required by the prosecution to bring home the charges against the accused persons and

how far the evidence as adduced by them is credible.

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17] Before sifting the evidence as adduced by P.W1 and P.W2, it is pertinent to

mention that though, it appears that three numbers of accused persons are tried in the

instant case which prima facie, appears to negate the foremost ingredient i.e. the necessity

of involvement of five persons in the alleged offence, to bring home the charge under

section 395 IPC against the accused persons. In this context, it is worthwhile to mention

that, though three persons are tried in the instant case but in fact charge sheet is

submitted against five numbers of accused persons but as two accused persons were found

juvenile therefore they were referred to Juvenile Justice Board.

18] The perusal of evidence of P.W 1, reveals that on 10.05.2014 at about 5.00 to 6.00

p.m. she went to Lichubari for marketing along with her friend, Keneselhou and after doing

marketing they went to Namuna village /Tea garden to take a walk and while they were

chatting with each other after entering into the said garden, all the accused persons along

with three persons came near to them with knife and snatched away her gold chain from

her neck and also snatched away her purse and took out Rs. one thousand and seven

hundred and her ATM card from her purse and also snatched away the mobile phone of her

friend and the accused persons outraged her modesty by touching her breast and buttock

and threatened them to pose before them to click their photograph and then also asked for

her mobile and to get the same they followed her to her hostel and then on the subsequent

day her friend, who was accompanying her on the date of the incident, found the accused

persons and recovered the stolen articles from them which was later on seized by the

police, which she proved as material exhibits before the court.

19] The perusal of evidence of P.W2, who was accompanying P.W1 on the date of

incident, reveals that he has brought the same facts as brought by P.W1 in her evidence

and thereby appears to have totally corroborated P.W 1. It appears that P.W2 also

categorically brought the fact on record that on 10.05.14, in the evening, after doing

marketing he alongwith P.W 1 went to Namuna Tea garden, and while they were chatting

with each other, the accused persons alongwith three persons by showing deadly weapon

snatched away the purse of P.W1 and also snatched away her gold chain from her neck

and then snatched away his mobile and touched the breast of P.W1 and threatened them

to pose to click photo and then also asked for the mobile of P.W1 and to get the same they

followed her to her hostel. It appears that P.W 2 further corroborated P.W 1 in bringing

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forth the fact, that on the subsequent day he recovered the stolen articles, which was

brought by one of accused persons i.e. Biren Mal, which was later on seized by the police.

20] The perusal of cross examination of both the aforesaid witnesses reveals that

defence failed to dislodge their credibility by bringing any contradiction in the vital facts as

brought by them. It appears that defence concentrated to establish the fact that during the

investigation no test identification parade was done and thereby tried to impeach the

credibility of the aforesaid witnesses. In this context, it is pertinent to mention that the fact

tried to be established by the defence does not hold any merit as the evidence of P.W1 and

P.W2 clearly reveals that both the aforesaid witnesses in their evidence before the court

duly identified all the accused persons, hence, the ascertainment of the fact that if any

identification parade of the accused persons was done during the investigation, is totally

immaterial.

21] The perusal of evidence of P.W 4 and P.W 5 on record, further appears to lend

due credence to the evidence of P.W 1 and P.W 2. It appears that both the aforesaid

witnesses (P.W3 and P.W 4) duly deposed that after the incident P.W 1 and P.W 2

informed them that when they were walking in the Namuna Tea Garden some persons

snatched away their belongings like gold chain, ATM card, money etc. It appears that P.W

5 categorically deposed that he also came to know from P.W 2 that all the stolen articles

were returned by one of the accused persons, Biren Mal and he further deposed he saw

the said accused person (Biren Mal) at Lichubari and also duly identified the accused Biren

Mal before the court. It appears that P.W 5 also categorically deposed that he came to

know from P.W 1 and P.W 2 that those persons behaved indecently with P.W 1. It appears

that defence failed to dislodge any of the aforesaid facts as brought by P.W 4 and P.W 5 in

support of the prosecution case.

22] It is pertinent to mention that though the perusal of doctor (P.W 3) and the medical

report reveals that no sign of violence on the private parts or any external injury on the

body of P.W1 was found but it is worthwhile to mention that there is no allegation of rape

against the accused persons but of outraging the modesty of the victim (P.W1) by touching

her breast and buttock and to bring home the said fact, the proof of any sort of injury is

not required. However, the evidence of doctor clearly reveals that there is a history of

molestation which appears to duly corroborate P.W 1.

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23] The perusal of entire materials on record nowhere reveals anything cogent to

disbelieve the evidence of P.W 1 and P.W2. The materials on record clearly reveal that the

accused persons are totally unknown to the complainants and it appears that defence failed

to bring anything on record, which would suggest any reason for the complainants to bring

false allegation against the accused persons. The perusal of statement of the accused

persons under section 313 Cr.pc reveals that the all accused persons except simply denying

the incriminating circumstance/material brought against them by the prosecution, failed to

explain any of such incriminating material. It is pertinent to mention in this context, that

though the accused in his aforesaid statement is not bound to explain the incriminating

circumstances appeared against him during the trial, but if he, even after getting an

opportunity to explain the incriminating circumstance appeared against him, fails to explain

the same then it definitely does not go in his favour.

24] It appears that the learned counsel mainly contended that there is discrepancy in

the evidence of the complainants (P.W1 and P.W2) and the investigating officer regarding

the seized articles which cast doubt on the prosecution case. It is pertinent to mention in

this context, that the perusal of materials on record nowhere reveals any such vital

contradiction which would cast doubt on the prosecution case but even if it is believed that

there is any such discrepancy but for the said fact, the entire evidence of P.W1 and P.W 2,

which otherwise appears to be absolutely corroborative and cogent and appears to have

proved the facts which are necessary to be proved to bring home the charges against the

accused persons, cannot be discarded totally. It is further pertinent to mention that though

there is a delay of few hours in lodging the FIR but the materials on record reveals that

such delay is not fatal and does not appear to have casted any doubt on the veracity of the

prosecution case.

25] The evidence on record clearly reveals that prosecution duly proved that the

accused persons alongwith three other persons committed theft of the belongings of the

complainants (P.W1 and P.W2) by showing them deadly weapon and thereby caused fear

of instant death or hurt to them and further proved that the accused persons assaulted one

of the complainants (P.W1), a woman, with the intention to outrage her modesty.

26] In view of the foregoing discussions, I am of the opinion that prosecution proved

the guilt of the accused persons under section 354 IPC and 395 IPC beyond all reasonable

15

doubt. Hence, the accused persons namely Bijay Das, Biren Mal and Ananta Naidu, are

convicted under section 354 IPC and 395 IPC.

SENTENCE HEARING

27] The accused persons namely Bijay Das, Biren Mal and Ananta Naidu are present.

Heard them on sentencing, Ananta Naidu and Biren Mal stated that they have got old

parents at home who are dependent on them and Bijay Das stated that he has got wife

and minor children at home who are totally dependent on him, hence, pleaded to deal

them with leniency .Considering all, the accused persons are sentenced to undergo 1 year

(One year) RIGOROUS IMPRISONMENT and to pay a fine of RS. ONE THOUSAND,

each in default, SIMPLE IMPRISONMENT for a period of ONE MONTH, under section

354 IPC and to undergo 5 years (Five years) RIGOUROUS IMPRISONMENT and to

pay a fine of Rs 3000 (three thousand) each in default RIGOUROUS

IMPRISONMENT for a period of SIX MONTHS under section 395 IPC, both the

sentences shall run concurrently.

28] Furnish a copy of judgment free of cost to the accused persons.

29] Let the seized articles be disposed of, in due course of time by delivering the

same to its owner.

30] Send a copy of this judgment to the District Magistrate, Jorhat as well as to

Superintendent Central Jail, Jorhat.

Given under my hand and seal of this court on this the 08th day of April, 2016.

Addl. Sessions Judge, Jorhat.

Dictated & corrected by me,

Addl. Sessions Judge, Jorhat.

Typed & transcribed by;(Sri Dambaroodhar Bora), Stenographer

16

APPENDIX:

List of witnesses from prosecution side:

P.W.1 : Smt. Malsawmzuali Zadeng

P.W.2 : Sri. Keneiselhou

P.W.3 : Dr. Kamala Das

P.W.4 : Sri. Debanga Bhushan Bora

P.W.5 : Sri. Ananda Kumar Pal

P.W.6 : S.I Jiten Gogoi

List of witnesses from defence side :

Nil.

List of witnesses from the side of Court:

Nil.

List of documents from prosecution side:

Ext.1: FIR.

Ext.2: Seizure List

Ext.3: Medical Report.

Ext.4: Sketch Map.

Ext.5: Charge sheet.

Ext 6 : Extract copy of G.D Entry no.176 dated 11.05.2014

List of Exhibits from defence side :

Nil.

List of Exhibits from the side of court :

Nil.

List of Material Exhibit from prosecution side:

Material Ext 1 : Two ATM cards

Material Ext 2 : Library card

Material Ext 3 : Big Bazaar card

Material Ext 4 : Piece of gold chain

Addl. Sessions Judge, Jorhat.

17

ORDER

08.04.16 Accused Bijay Das, Biren Mal and Ananta Naidu are

present.

Judgment is prepared on separate sheets and tagged with the

case record .The same is delivered in the open court today.

I am of the opinion that prosecution proved the guilt of the

accused persons under section 354 IPC and 395 IPC beyond all

reasonable doubt. Hence, the accused persons namely Bijay Das,

Biren Mal and Ananta Naidu, are convicted under section 354 IPC

and 395 IPC.

Heard them on sentencing, accused Ananta Naidu and Biren Mal

stated that they have got old parents at home who are dependent

on them and Bijay Das stated that he has got wife and minor

children at home who are totally dependent on him, hence,

pleaded to deal them with leniency .Considering all, the accused

persons are sentenced to undergo 1 year (One year)

RIGOROUS IMPRISONMENT and to pay a fine of RS. ONE

THOUSAND, each in default, SIMPLE IMPRISONMENT for a

period of ONE MONTH, under section 354 IPC and to undergo 5

years (Five years) RIGOUROUS IMPRISONMENT and to pay

a fine of Rs 3000 (three thousand) each in default

RIGOUROUS IMPRISONMENT for a period of SIX MONTHS

under section 395 IPC, both the sentences shall run concurrently.

Furnish a copy of judgment free of cost to the accused persons.

Let the seized articles be disposed of, in due course of time by

delivering the same to its owner.

18

Send a copy of this judgment to the District Magistrate, Jorhat as

well as to Superintendent Central Jail, Jorhat.

Addl. Sessions Judge, Jorhat.