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IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,

TINSUKIA

District:- Tinsukia

Present:– Smti Karuna Devi,

Judicial Magistrate First Class,

Tinsukia.

Tuesday, the 28th day of April, 2015

G.R. Case No. 1262/2014

U/S. 457/ 354 I.P.C.

State of Assam ……....... Complainant.

-Vs-

Sri Chal Sing Dhan,

S/O. Lt. Jakia Dhan,

R/o. Khagorijan Chariali,

P.S. Doomdooma, Tinsukia ………… Accused.

Date of evidence : 10.09.14, 22.10.14, 17.11.14, 15.12.14, 20.01.15.

Date of argument : 22.04.15

Date of Judgment : 28.04.15

This case coming on for final hearing on 22nd of April, 2015 in the

presence of:-

Advocate for the Prosecution :- Smti P.Kalita, Astt.P.P

Advocate for the Defence :- Smti A. Sanatan

and having stood consideration to this day, the Court delivered the following

Judgement:

JUDGMENT

1. The brief fact of the prosecution story is that on 25.05.14, the complainant,

Smti. Bharati Munda lodged an ejahar before Talap Police Outpost to the effect that

on 24.05.2014 at around 10 p.m., the accused, Sri Chal Sing Dhan entered her

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house after digging through their door and tried to commit immoral acts with her

but as she screamed, people came out of their houses and so the accused persons

fled. She further alleged that the accused person had earlier entered another house

and tried to outrage the modesty of another women. Hence the instant case upon

the accused, Sri Chal Sing Dhan.

2. The F.I.R. was received at Talap O.P. vide G.D.E. No. 344 dated 25.06.14

and the same was forwarded to the O/C of Doomdooma P.S., who received and

registered a Doomdooma P.S. Case bearing No. 351/ 2014 U/S. 457/ 354 I.P.C.

After completion of investigation, the I.O. submitted chargesheet against the

accused persons U/S. 457/ 354 I.P.C.

3. On submission of chargesheet, the accused person was produced from jail

hajot and he faced trial from jail custody. As the accused person was unrepresented

and stated his inability to engage a Counsel, Smti. Anita Sanatan was appointed as

his State Defense Counsel.

4. Thereafter, the accused person was furnished copies as per the provisions of

Sec. 207 Cr.P.C. After hearing both sides and after perusal of the Case-Record,

statements under Sec.161 Cr.P.C., FIR etc, prima-facie materials were found against

the accused person U/S. 457/ 354 I.P.C. and so formal charges were framed against

him and the particulars of the charges so framed were read over and explained to

the accused person to which he pleaded not guilty and claimed to be tried.

5. During the course of trial, the accused was allowed to go on bail on

furnishing a bail bond of Rs.8000/- with a local surety of like amount. But as the

accused did not go on bail, he faced trial from judicial custody. The prosecution side

examined as many as 6 number of witnesses and prosecution evidence was closed.

The accused person was examined under Sec. 313 Cr.P.C The defense case was of

total denial and they declined to adduce any evidence.

POINTS FOR DETERMINATION:-

(i).Whether the accused person on 25.06.2014 at 10 p.m. committed house-

breaking after sunset and before sunrise by entering into the house of the

informant, Smti. Bharati Munda through a passage made by him for the purpose of

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outraging the modesty of the complainant and thereby committed the offence as

alleged?

(ii). Whether the accused person on the same day and same time used criminal

force on the complainant with intent to outrage her modesty and thereby committed

the offence as alleged?

DISCUSSION, DECISION & REASONS THEREOF :

6. During the course of trial, the prosecution side examined six (6) number of

witnesses, namely: Smti. Bharati Munda as PW-1, Sri Ranjit Sanga as PW-2, Sri Anil

Dhan as PW-3, Sri Birchi Munda as PW-4, Sri Prabin Kashyap as PW-5, Sri Anup

Dutta as PW-6.

7. I have heard the arguments of both the sides and thereupon come to the

findings upon the following points for determination:-

8. PW-1, Sri Bharati Munda who is the informant of the case deposed that

the incident occurred at 10 p.m. at night and that she was sleeping. She stated that

the accused person had dug a passage/ hole through the backside of her house and

after entering called out , “Bou, Bou”. At this she got scared and she called out her

mother-in-law, Smti. Birchi Munda. She recognised the accused person. That when

she called her mother-in-law and opened the door, then the accused person fled

away. She also stated that the accused person had come and tried to do wrongful

acts with her but as she screamed, he failed to do so. Thereafter her mother-in-law

called her uncle, Ranjit Sanga and he was accompanied by neighbours and she

showed them the passage which was dug by the accused person. Then her uncle

and other people went in search of the accused person. The next day, the accused

person was found in Khorijan in the house of one Sri Jup.

During her cross-examination, she stated that her husband had expired 5

years ago and that she lives with her four sons and daughters. She stated that she

knew the accused person prior to her marriage and stated her ignorance as to

whether the accused person ever had a fight with her deceased husband. She

further stated that she goes to sleep with the lamp burning and that her mother-in-

law resided in the room next to hers. She also stated that she had not got any kind

of such disturbance after her husband’s death. She denied that the accused had not

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come to her house on the day of the incident and that she was deposing falsely.

9. PW-2, Sri Ranjit Sanga stated that at the time of the incident, he was at

his own house and that he was informed about the incident by the complainant’s

mother. He stated that she told him that the accused person had entered their

house by digging a hole/ passage in the backside of their house. But he stated that

he did not why the accused person had entered the house. He stated that he went

to the complainant’s house alongwith Sri Anil Dhan and Sri Prabin Kashyap although

there were other people, whose names he could not remember. He also stated that

after reaching the complainant’s hosue, he saw that the wall was broken and a hole

was dug. Thereafter, they went in search of the accused person but did not find

him. The next day he accompanied the complainant to the Police station and he was

informed over phone by fellow villagers that they had caught the accused person.

During his cross-examination, he deposed that he was informed about the

incident by Bharati Munda and her mother-in-law, Smti. Birchi Munda. He stated his

ignorance about the incident and stated that he knew only being told by the

complainant and her mother-in-law. He stated that he did not know who had

committed the incident but also stated that the complainant and her mother-in-law

told him that the accused person had committed the incident.

10. PW-3, Sri Anil Dhan deposed that at the time of the incident, he was at

his home and that he was informed about the incident the next day by villagers

when he was going to tie his cows. Therafter, he went to the house of Smti Bharati

Munda, the complainant where he was informed that the accused person had

entered the house of the complainant at night by digging a hole/ passage and so he

went to the place of occurrence and saw the hole, which was stated to be dug by

the accused person. He stated his ignorance as to what the accused person had

done after entering the house of the complainant. He further stated that he had not

seen the accused person. He also stated that the villagers had searched the accused

person and caught him at his own house at Khagorijan and thereafter handed over

to police.

During his cross-examination, he deposed that he did not know anything on

the day of the incident and that he learnt about the incident only the next day. He

stated that he knew what had occurred but he did not know who had committed

the incident.

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11. PW-4, Smti. Birchi Munda deposed that she was with her daughter-in-law

and her four grand-children in her house on the day of the incident. She stated that

the accused person had entered their house after digging a hole. That her

daughter-in-law got scared after seeing the accused person and screamed to call

her. She thereafter stated that she went and saw the accused person, who on

seeing her fled away. She deposed that as it was a full moon night on the day of

the incident, so she could see the accused person and recognised him. Then she

called her brother, Sri Ranjit who resided nearby and he had informed other people.

During her cross-examination, she stated that while sleeping, they kept their

lights on. She stated that she had told police that as the day of the incident was a

full moon night, so she had seen the accused person. She also stated that they did

not have any visiting terms with the accused person. She deposed that as they were

sleeping, so they did not know anything when the accused person had dug the

holee. She also stated that she had not heard anything about the accused person

committing similar incidents in the past.

12. PW-5, Sri Prabin Kashyap deposed that at the time of the incident, he

was sleeping at his house. At on the day of the incident, his co-villager had come to

call him and took him to the place of occurrence. He stated that after arriving at the

house of Smti Bharati Munda, he noticed that there was a hole dug on the backside

and on enquiring he learnt that the accused person had dug the hole and entered

the house of the complainant and that the accused person had touched the body of

the complainant when she screamed out and the accused fled from the scene.

Thereafter he stated that he accompanied Sri Ranjit Sanga and Sri Anil Dhan in the

search of the accused person but found him only the next morning at Khargorijan in

the house of one Sri Jup. He deposed that the accused person had not committed

similar incidents in the past.

During his cross-examination, he deposed that he knew about the incident

and he did not know who had dug the hole. He also stated that the next morning,

they had handed over the accused person to the police.

13. PW-6, A.S.I. Sri Anup Dutta deposed that he is posted as ASI in Talap

Police Outpost and that on 25.06.2014, the complainant, Smti. Bharati Munda had

come and lodged an FIR informing that accused, Chal Singh Dhan on 24.06.2014 at

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around 10 p.m. had entered her house by digging a hole and tried to commit

immoral acts with her. That on being entrusted with the investigation, he visited the

place of occurrence and took statements U/S. 161 Cr.P.C. That Ext-1 is the Rough

Sketch map of the place of occurrence prepared by him and Ext-1(1) is his

signature. That while he was enquiring about the matter, then the villagers had

caught the accused person and handed him over to him. He stated that he had not

submitted the chargesheet, that is, Ext-2 and recognised the signature of Sri

Amulya Gogoi at Ext-2(1), who had filed the chargesheet.

During his cross-examination, he deposed that the FIR was lodged at 6

p.m. and that he had visited the place of occurrence on 26th and taken the

statements of those whom he had met. He took the statement of the complainant

on 25th.

14. Now, let us appreciate the evidence available on record to arrive at the

points for determination. The first point for determination is whether the accused

person had committed the offence of lurking house-breaking at night in order to

commit an offence punishable with imprisonment. So, the essential elements that is

required to constitute an offence U/S. 457 I.P.C. is that there must be house

breaking which must be committed at night and that such house-breaking must

have been with an intention to commit an offence. In order to see whether the

essentials elements of Sec. 457 I.P.C. are complied with or not in the instant

case,we must start first from the FIR, through which the complainant had set the

state machinery into action.

15. The complainant had stated in her FIR that on 24.05.2014 at around 10

p.m., the accused, Sri Chal Sing Dhan had entered her house after digging through

their door and tried to commit immoral acts with her but as she screamed, people

came out of their houses and so the accused persons fled. She further alleged that

the accused person had earlier entered another house and tried to outrage the

modesty of another women. It is to be remembered that FIR is only a piece of

information which sets criminal law into motion and is not in any way a substantive

piece of evidence. Before we proceed to examine the evidences, oen thing that is

apparently clear is the time of the incident and which is nowhere disputed, that is, it

is stated to have occurred at 10 p.m. when the complainant was sleeping.

16. Now let us examine her deposition as PW-1. She stated that the accused

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person had dug a hole through the backside of her house and after entering called

out , “Bou, Bou”. At this she got scared and she called out her mother-in-law, Smti.

Birchi Munda. She also stated that she recognised the accused person. That when

she called her mother-in-law and opened the door, then the accused person fled

away. She also stated that the accused person had come and tried to do wrongful

acts with her but as she screamed, he failed to do so. Thereafter her mother-in-law

called her uncle, Ranjit Sanga and he was accompanied by neighbours and she

showed them the passage which was dug by the accused person. Then her uncle

and other people went in search of the accused person. The next day, the accused

person was found in Khorijan in the house of one Sri Jup. During her cross-

examination, she stated that she goes to sleep with the lamp on and that her

mother-in-law resided in the room next to hers.

17. Now let us examine the evidence of the first person who was informed

about the incident, that is the mother-in-law of the informant, Smti Birchi Munda

who is PW-4. She deposed that she was with her daughter-in-law and her four

grand-children in her house on the day of the incident. She stated that the accused

person had entered their house after digging a hole and when her daughter-in-law

got scared on seeing him and screamed, she went and saw the accused person,

who on seeing her fled away. She deposed that as it was a full moon night on the

day of the incident, so she could see the accused person and recognised him. Then

she called her brother, Sri Ranjit who resided nearby, who informed other people.

During her cross-examination, she stated that while sleeping, they kept their lights

on. Now, PW-2 has stated that she had called for Sri Ranjit Sanga who resided

nearby which fact is also stated by PW-1.

18. PW-2, Sri Ranjit Sanga has stated that at the time of the incident, he

was at his own house and that he was informed about the incident by the

complainant’s mother who told him that the accused person had entered their

house by digging a hole in the backside of their house. He also stated that after

reaching the complainant’s house, he saw that the wall was broken and a hole was

dug. But he stated that he did not why the accused person had entered the house.

He stated that he went to the complainant’s house alongwith Sri Anil Dhan and Sri

Prabin Kashyap although there were other people, whose names he could not

remember. Thereafter, they went in search of the accused person but did not find

him. The next day he accompanied the complainant to the Police station and he was

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informed over phone by fellow villagers that they had caught the accused person.

During his cross-examination, he deposed that he was informed about the incident

by Bharati Munda and her mother-in-law, Smti. Birchi Munda. He stated his

ignorance about the incident and stated that he knew only being told by the

complainant and her mother-in-law. He stated that he did not know who had

committed the incident but also stated that the complainant and her mother-in-law

told him that the accused person had committed the incident. PW-3, Sri Anil

Dhan , who is stated to have accompanied Sri Ranjit Sanga to the complainant’s

hosue however deposed that at the time of the incident, he was at his home and

that he was informed about the incident the next day by villagers when he was

going to tie his cows. Therafter, he went to the house of Smti Bharati Munda, the

complainant where he was informed that the accused person had entered the house

of the complainant at night by digging a hole/ passage and so he went to the place

of occurrence and saw the hole, which was stated to be dug by the accused person.

He stated his ignorance as to what the accused person had done after entering the

house of the complainant. He further stated that he had not seen the accused

person. He also stated that the villagers had searched the accused person and

caught him at his own house at Khagorijan and thereafter handed over to police.

During his cross-examination, he deposed that he did not know anything on the day

of the incident and that he learnt about the incident only the next day. He stated

that he knew what had occurred but he did not know who had committed the

incident. PW-5, Sri Prabin Kashyap deposed that at the time of the incident, he

was sleeping at his house. At on the day of the incident, his co-villager had come to

call him and took him to the place of occurrence. He stated after arriving at the

house of Smti Bharati Munda, he noticed that there was a hole dug on the backside

and on enquiring he learnt that the accused person had dug the hole and entered

the house of the complainant and that the accused person had touched the body of

the complainant when she screamed out and the accused fled from the scene.

Thereafter he stated that he accompanied Sri Ranjit Sanga and Sri Anil Dhan in the

search of the accused person but found him only the next morning at Khargorijan in

the house of one Sri Jup. During his cross-examination, he deposed that he knew

about the incident and he did not know who had dug the hole. He also stated that

the next morning, they had handed over the accused person to the police.

19. From all the evidences on record, it is substantially clear that all witnesses

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have equivocally stated that on the date of the incident, there was a hole dug on

the backside of the house of the complainant. Now, it needs to be determined who

had dug the hole and for what purpose. Although the entire evidence and materials

on record is silent as to when and how the hole was dug yet the evidence of PW-1

and PW-2 clearly states that when the hole was discovered , the accused ,Sri Chal

Sing Dhan was there. PW-1 has herself deposed that while the accused had dug the

hole and entered through the same to her house and called her out as “bou, bou”,

She got scared and called her mother-in-law. She also categorically stated that she

had recognised the accused person. In her evidence as well as in her cross-

examination she has also mentioned that she sleeps with the lamp burning which

also does not leave an doubt to presume that the complainant had not seen him.

Now, PW-4 has also stated that when the complainant called her, she went there

and saw the accused person. She also stated that it was a full moon night and so

she had recognised the accused person. Hence, the identity of the accused person

has been clearly established and proved beyond any reasonable doubt from the

evidences. To corroborate the evidences, we may now refer to the depositions of

the other witnesses, that is of PW-2, 3 and 5. Each of these witnesses have stated

in their evidences that they were informed about the incident by either PW-1or PW-

4 or that having learnt from other persons had gone to the site of occurrence and

had thereafter learnt about the accused person committing the offence. Although

some minor discrepancies have been found yet they are found not to be fatal to the

prosecution case.

20. It is pertinent to mention here one fact as to the credibility of witnesses that

any one single circumstance cannot be taken to be decisive or determinative of a

fact in issue but it is the cumulative effect of all the circumstances that shall have to

be taken into account while judging the credibility or otherwise of the witness. As

the evidence of the witnesses have corroborated with the prosecution story forming

a complete chain of events, hence their evidence becomes admissible. Also the

relevant facts as stated by the witnesses are all contemporaneous with the fact in

issue and hence the question of disregarding their evidences does not arise at all.

Hence, from all the evidences it can safely be presumed that the accused person

had on 24.06.2014 at around 10 p.m. dug a hole through the backside of the house

of the complainant and thereby committed house-breaking at night-time, which fact

is duly proved by the prosecution.

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21. With regard to the second point for determination, the complainant had

stated in her FIR that the accused person had tried to commit wrongful act with her

when she screamed. She has deposed in her evidence as PW-1 that the accused

person had tried to do wrongful acts with her but what is this wrongful act has not

been stated by her specifically. Wrongful act can be of any nature and may in

certain cases not constitute an offence under the Code as to to punish the accused

person. PW-2, Sri Ranjit Sanga has also stated his ignorance as to why the accused

person had entered the house of the complainant. PW-3, Sri Anil Dhan similarly

stated his ignorance as to why the accused person had entered the house and also

stated that he did not know who had committed the offence. PW-4, Smti. Birchi

Munda did not make any whisper as to what the accused person had done after

entering the house. However, PW-5, Sri Prabin Kashyap has deposed that the

accused person had touched the complainant when she had shouted. PW-6, Sri

Anup Dutta who had investigated the case has stated that the accused person after

digging a hole through the house of the complainant had tried to commit immoral

act.

22. From all the said evidences, it is nowhere clear as to with what motive the

accused person had entered the house of the complainant. Although PW-5 stated

that accused person had touched the body of the complainant but the complainant

herself has been silent as to the nature of the act attempted to be committed upon

her by the accused after entering the house. She has merely stated that the

accused person had tried to commit wrong with her but mere evidence that the

accused person had tried to commit wrongful act with her does not amount to an

offence U/S. 354 IPC. Neither there is mention of any criminal force or assault upon

her so as to outrage her modesty so as to constitute an offence U/S. 354 IPC or

either an offence U/S. 509 IPC. Hence, in the absence of substantive proof, the

benefit of doubt may be accorded to accused and hence he is found not guilty of

the offence U/S. 354 IPC.

23. But we are yet to arrive at the premise as to whether the entering of the

accused person in the house of the complainant was with the intent of committing

any offence so as to constitute an offence U/ S. 457 I.P.C. It is now a matter of

general prudence that no man in a civilised society would enter any house in the

manner as adopted by the accused person in the instant case if he did not have any

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malafide/ wrongful intention. If he had any business with the complainant, he could

have waited for day-fall or could have come calling as a civilsed person by knocking

at her door instead of digging a hole throught her house. Hence, the wrongful

intention of the accused person can easily be deduced. However, a man cannot be

conviced on mere surmises and presumptions. His guilt has to be proved beyond

any reasonable doubt. Thus, it is clear that only the offence of house-breaking at

night has been proved beyond doubt, which is an offence U/S. 456 IPC instead of

Sec. 457 IPC.

24. Now, as per Sec. 222(2) Cr.P.C, 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. As such, the said provision

empowers the Court to convict an accused person for a minor offence although he

may not be charged for it. Here the accused was charged with Sections 457/ 354

IPC but facts proved that the accused committed only house breaking at night as

the offence of Sec. 354 IPC could not be proved. Hence, the charges U/S. 457/354

IPC may be reduced to Sec. 456 IPC.

25. In view of the above discussions and observations, I am of the considered

opinion that the prosecution has been successful in proving the case U/S. 456 IPC

for committing the offence of house-breaking at night by the accused person, Sri

Chal Sing Dhan.

26. Accordingly, the accused Sri Chal Sing Dhan is held guilty U/S. 456 IPC and

convicted for the same.

27. The modus operandi of the accused person to commit the offence and his

conduct of house-breaking into the house of a young widow at the dead of night

does not warrant that his case be considered for affording the benefit of probation

under the Probation of Offenders Act because such an act cannot be afforded to be

allowed to be committed in a civilised society where it is the sworn duty of every

member to see that every one in the society is safe at home, especially women and

children.

28. I have heard the accused person on the point of sentence to be awarded to

him to which he submitted that he is poor person and he begged for leniency.

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Heard both sides. Considering the nature of the case as well as the social settings of

the accused and the accused person having to look after his family, I am of the

reasonable opinion that the accused person deserves some leniency. So, I am of the

reasonble opinion that awarding a sentence of imprisonment for 3( three ) months

with fine will meet the ends of justice.

ORDER

29. Thus, in view of the above discussions and observations, I do hereby convict

the accused person, Sri Chal Sing Dhan to undergo rigorous imprisonment for

three(3) months and pay a fine of Rs. 3000/-. In default of payment of fine, S.I. for

15 days. The period of detention that the accused person has already undergone be

set off from his period of sentence.

30. Supply a free copy of the judgment to the convicted person free of cost.

Given under my hand and seal of this Court on this the 28th day of April,

2015 at Tinsukia.

(Karuna Devi)

Judicial Magistrate First Class,

Tinsukia

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APPENDIX

Prosecution Witnesses:

1. PW-1 : Smti. Bharati Munda

2. PW-2 : Sri Ranjit Sanga

3. PW-3 : Sri Anil Dhan

4. PW-4 : Smti. Birchi Munda

5. PW-5 : Sri Prabin Kashyap

6. PW-6 : A.S.I. Sri Anup Dutta

Prosection Exhibits :

1. Exhibit -1 : Sketch Map of the place of occurrence

2. Exhibit-1(1) : Signature of I.O. Sri Anup Dutta

3. Exhibit-2 : Chargesheet

4. Exhibit-2(1) : Signature of Sri Amulya Dutta.

Defense witnesses : Nil

Defense Exhibits : Nil

Court Witnesses : Nil

(Karuna Devi)

Judicial Magistrate First Class,Tinsukia