Crl.A. 335/2003 BEFORE THE HON BLE MR. JUSTICE H. BARUAH Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. IA Hazarika, le arned counsel for the appellant. Also heard Mr. K. Munir, learned Addl. PP for t he State of Assam, the respondent herein. The appellant faced trial for the charges under Section 448/354/376 IPC R/W Sect ion 511 IPC before the Court of Sessions Judge, Karimganj. After due trial of th e appellant under the aforesaid charges the Trial Court found the appellant guil ty under Section 448/354 IPC and accordingly convicted and sentenced the appella nt to pay a fine of Rs.300/- under Section 448 in default, to suffer imprisonmen t for one month S.I. He was also convicted under Section 354 IPC and sentenced t o undergo S.I. for two months. No fine however, was imposed on the appellant und er Section 354 IPC. The appellant being aggrieved by the conviction and sentence, as indicated above , preferred this appeal against the judgment and order of conviction dated 23.9. 2003 passed by the learned Sessions Judge in Sessions Case No. 58/02 arising out of GR Case No. 803/2002. The brief facts involved in the case are as follows:- On 5.9.2002 at about 10-10 a.m. while the prosecutrix (PW-1) was inside her residence the appellant came to her house and tried to molest her whereupon she shouted and on the appearance of the kids of the prosecutrix and the neighbo urs the appellant had to leave the place. It was also alleged by the prosecutrix that at that time the appellant tried to undress the prosecutrix and to commit rape on her. An FIR having been lodged, after due investigation the charge sheet was filed by the Investigating Officer against the appellant under Section 448/ 354/376/511 IPC. The case was committed to the Court of Sessions for trial. The appellant then faced the trial under the charges as indicated above. The prosecution examined 6 witnesses including the Investigating Officer. The Tr ial Court after meticulously considering the evidence on record and the facts in volved therein, however, did not find the accused guilty under Section 376 IPC R /W Section 511 IPC and accordingly acquitted him from that charge. However, on t he basis of the evidence the appellant under Section 448/354 IPC was convicted a s stated hereinabove. The learned Trial Court while recording conviction under the charge as indicated above found the evidence of the prosecutrix cogent and acceptable that support ed by the evidence of her children (PW-2 and PW-3). Though a defence was put by the appellant the same was disbelieved by the Trial Court and resultantly no ben efit was given to the appellant. PW-1 in her evidence categorically stated that at about 10.10 a.m. while she was in her house, appellant Joy Mohan Das came there and asked for a glass of water . Her husband (PW-5) was then away at Barthal in connection with bamboo business . Her daughter (PW-2) was washing some utensils outside the house at a little di stance while her son (PW-3) was cleaning some jungle down the hill near their re sidence. She also stated in her evidence that when offering the glass of water t he appellant caught hold of her hand and dragged her and gagged her mouth and tr ied to undress her by pulling her saree. She has also stated that accused in the meantime also undressed himself with a view to commit rape on her. She removed his hand from her mouth and hullah being raised her daughter Alpana Nath (PW-2) , who was cleaning utensils outside, came inside the house and her son as well. PW-2 and PW-3 both daughter and son also stated that hearing hullah they entered the room and saw the appellant inside the house. The learned trial Court while considering the evidence of PW-1 , Pw-2 and PW-3 f ound some inconsistencies in between the evidence of the three witnesses in resp ect of entrance of the appellant, dragging of their mother and pulling of weari ng apparel i.e. saree. The Trial Judge, however, did not lay much importance int o the evidence of the other witnesses in view of consistent evidence of PW-1, PW -2 and PW-3. It was observed by the Trial Judge that PW-2 and PW-3 fully corrobo rated the evidence of PW-1 and for that their evidence cannot be disbelieved in respect of the entrance as well as dragging of PW-1 by catching hold of her hand and pulling of her wearing saree. The learned Trial Judge, however, did not ta ke into consideration the discrepancies appearing in the face of evidence of PW- 2 and PW-3. The learned Trial Judge considered the discrepancies as minor which according to the Court cannot shake the case of the prosecution. The learned Tri al Judge therefore taking into consideration the evidence on record particularly the evidence of PW-1, PW-2 and PW-3 recorded the conviction of the appellant un der the charges as indicted above. Mr. HRA Choudhury, learned senior counsel while arguing the appeal submits that the prosecution case has been shaken considerably with discrepancies regarding o ffering of glass of water to the appellant. No reliance, therefore, can be put o n the prosecution case and appellant be acquitted from both the charges, Mr. HRA Choudhury argues. In view of the submissions it would be appropriate for this Court to say that th e learned Trial Judge made a thorough discussion about the discrepancies appeari ng in the evidence on record and it did not consider sufficient to disbelieve th e case of the prosecution. Mr. HRA Choudhury, learned senior counsel draw emphas izes on those discrepancies appearing in the evidence, we find no substance in t he submissions of Mr. HRA Choudhury in view of the observation of the learned Tr ial Judge. From the overall consideration of the facts and the evidence on record, particul arly, evidence of PW-1, PW-2 and PW-3 this Court finds that no illegality has be en committed by the Trial Court in convicting the appellant under Section 448 an d 354 IPC . There appears no cogent and sufficient ground to set aside the convi ction. Mr. HRA Choudhury, learned senior counsel while arguing also submits that the ap pellant is convicted under Section 354 IPC and sentenced to undergo S.I. for two months. He submits that during trial and the investigation the appellant was de tained in jail for about 56 days. Appellant was detained in jail custody on and from 14.9.2002 and was released on 10.11.2002. Since the appellant was convict ed and sentenced for two months under Section 354 IPC, in view of appellant’s de tention for 56 days, the sentence is reduced for the period already undergone. Mr. K. Munir, learned Addl. PP for the State respondent, considering the charges and the evidence on record has not, however, resisted the submissions of Mr. HR A Choudhury, learned senior counsel. Taking note of the facts and the evidence on record, this Court maintains the co nviction awarded by the learned Trial Court under Section 448/354 IPC. However, sentence awarded under . that has been awarded under Section 354 IPC is reduced to the period already undergone. The sentence is partly modified to the extent as indicated above. Appeal is partly allowed. The appellant is on bail. He e Ha nd shall surrender before the learned Sessions Judge, Karimganj, who shall take steps in accordance with law. Send down the LCRs.