Crl.A. 305/2003 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard the learned Counsel appearing for the appellant. The State is represented by Mr. B.B. Gogoi, the Addl. Public Prosecutor. 2. This Appeal is presented against the judgment and order dated 11 .9.2003 in Sessions Case No. 37(K)/1996, whereby the accused appellant is convi cted under Section 354 of IPC and sentenced to suffer S.I. for 2 years. 3. The criminal process was set in motion in this case with the lod ging of an FIR on 4.4.1994, where it was alleged that on that night at about 10: 30 p.m. while the informant’s maidservant Nilima Rabha (victim) was at the commo n bathroom on the 3rd floor of the tenanted Dasuram Mir Jamal Charitable Trust b uilding, the appellant forcibly grabbed and kissed her and also attempted to com mit rape. Then the victim shouted for help and the informant and his brother rus hed to the place of occurrence and rescued her. The FIR was lodged by Raj Karan Khemka and after G.D. Entry No.181 was registered at the Fancy Bazar Outpost, th e information was forwarded to the All Women Police Station where Case No. 13/94 was registered under Section 376/511 of IPC. The accused who too appeared at th e police station was arrested after completion of the charge sheet. 4. As the appellant denied the charge, the case was put to trial wh ere 5 witnesses were presented by the prosecution, whereas 2 defence witnesses w ere also adduced. 5.1 P.W.1 was the victim girl who stated that the appellant forcibly grabbed her immediately after she came out of the urinal and then he tried to r ape her. Hearing her shout her employer, Raj Karan Khemka, his mother and Raj Ka ran’s brother arrived at the spot and rescued her. In her cross-examination, the witness stated that the place of occurrence was well lighted and many people we re present at that time, in the tenanted rooms of the 3rd floor of the building. 5.2 P.W.2 was the informant in the case. He reached the place of occ urrence after hearing the shout of the victim. He stated to have rescued the vic tim from the clutches of the appellant. In his cross-examination, the witness st ated that the bathroom was about 40/50 feet from his bedroom and lights were on in the corridor and also in the bathroom. 5.3 P.W.3 Shri Chandmal Khemka was the elder brother of the informan t. He rushed to the place of occurrence on hearing the cries of the victim and f ound her weeping at that time. In his cross-examination, although he testified t hat he closely followed the informant (P.W.2), but unlike the informant, he did not see the appellant holding the victim. The witness significantly didn’t see the accused Pradip in compromising position. 5.4 P.W.4 is the Magistrate who recorded the statement of the victim lady. P.W.5 Dipali Buragohain was the officer-in-charge of the Pan Bazar All Wo men Police Station. She arrested the accused after he was forwarded by the offic er-in-charge of the Fancy Bazar Outpost and arranged to have the victim girl me dically examined. According to her the incident took place at the corridor near the common bathroom on the 3rd floor of the building. 6.1 D.W.1 is Banwarilal Sarma was a tenant in the 3rd floor of the b uilding. There were several other tenants also on the same floor. According to h im, at about 10:30 p.m. when the victim had gone to the 3rd floor toilet she was followed by the informant at an interval, of 2/3 minutes. At that time the accu sed after having a ’pan’, was coming up to the 3rd floor of the building along w ith Lalan panwalla. The witness asked why the accused brought the panwalla, the accused replied that since he owes money, the panwalla has come up to receive pa yment. According to the D.W.1, the accused thereafter went towards the toilet wh en the victim and the informant were yet to return from the bathroom. Then the w itness heard altercation between the accused and the informant. He testified tha t the accused voluntarily went to the police station and was not escorted by any one. He also stated that the accused and the informant used to quarrel often on the issue of the water and use of the common toilet. He also stated that 2 toile ts in the 3rd floor were shared by the families who resided on that floor of the building. 6.2 D.W.2 is Raj Kumar Sahal who was also a tenant on the 3rd floor of the building. He ran his flower garland business from his room adjacent to th e common toilet. He along with his staff of 10/12 were working that night in the room till 12/12:30 midnight and the doors and windows of their room were kept o pen while they worked. He saw the victim going towards the bathroom at about 10: 30 p.m. with the informant following her a little later. After about 8 minutes, the witness saw the accused come up to the 3rd floor along with Lalan Panwalla. Then the accused Pradip went to the bathroom and within a minute, the D.W.2 hear d shouts coming from the direction of the toilet and saw altercation between the accused and the informant. In his cross-examination, the witness stated to have seen the informant and the victim in compromising position on 2 earlier occasio ns. 7. In the statement given by the accused under Section 313 Cr.P.C., he projected that he found the victim and the informant in a compromising posit ion in the common bathroom and then he rebuked the informant. This led to an alt ercation between him and the informant when the victim started crying. Thereafte r to protect themselves, the informant and the victim foisted a false case of mo lestation on the accused. 8. Although the victim in her deposition in Court as well as in her statement made under Section 164 Cr.P.C. has implicated the accused. It must be borne in mind that the occurrence took place at about 10:30 p.m in the corridor near the common toilet of the 3rd floor of a crowded building, where people are usually awake till about 12 midnight. The D.W.2 who is in the flower garland bu siness was working on his flowers in his tenanted room adjacent to the common to ilet at the relevant time. The corridors and the bathroom were well illuminated on the night of the incident. The question is whether the accused forced himself upon the victim in such circumstances particularly when, the victim was in a po sition to draw the attention of several nearby persons if any assault is attempt ed on her. 9. Undoubtedly in a case of outraging a woman’s modesty, conviction can be made on the basis of even uncorroborated testimony of the victim lady pr ovided it is found to be trustworthy and truthful. But from the evidence of the D.W.1 and D.W.2 who as near neighbours testified that the accused at the relevan t time was coming up to the 3rd floor of the building along with Lalan Panwalla, the defence version can’t be said to be an improbable version of the incident. Considering the evidence of the Investigating Officer that the incident took pl ace at the corridor near the common toilet and the victim being a grown up lady, doubt arises as to whether the accused would dare to force himself upon an unwi lling woman, to risk being caught by the large number of occupants of the 3rd fl oor. An encounter in those circumstances however could have been in the realm of possibility only between 2 consenting persons and aggressive assault in my view was an unlikely possibility. 10. Significantly D.W.2 had stated that on 2 earlier occasions also, he had seen the victim lady in compromising position with the informant at the place of occurrence and it is possible that when the accused discovered the vict im and the informant in a compromising position on that night, to save themselve s the scandal, a false case was foisted on the accused. Discrepancy is seen also in the testimony of the P.W.2 and P.W.3, both of whom rushed together to the pl ace of occurrence. 11. Furthermore, it is also on evidence that the accused had volunta rily gone to the police station and therefore the possibility of the accused bei ng a victim rather than the culprit, can’t entirely be ruled out as he might hav e gone to the police station to give a complaint against the informant and the v ictim. 12. Therefore, I feel that the learned Trial Court did not pay adequ ate attention to the evidence given by the 2 defence witnesses. If one takes not e of the testimony of the 2 defence witnesses and the statement of the accused u nder Section 313 Cr.P.C. another probable version of the incident emerges and th e prosecution version may not be the correct version of the incident on the nigh t of 4.4.1994. If the accused at the relevant time was returning to the building along with the Panwalla after having a ’pan’, his forcible encounter with the victim girl is doubtful and the possibility of the accused being made a victim t o escape shame and scandal by the informant who is a married man and the victim who was a maid in his house, can’t entirely be ruled out. 13. In the above circumstances, I find enough reason to interfere wi th the impugned judgment and order dated 11.9.2003 and accordingly the convictio n is set aside and quashed. The bail bond of the appellant stands discharged. Th e LCRs be returned by the Registry.