Page No.# 1/5 GAHC010122362014 2025:GAU-AS:13775 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./27/2014 MD. FAZLUR RAHMAN S/O HABIBAR RAHMAN, VILL. BARBHITA, P.O. CHANDMAMA, P.S. KALGACHIA, DIST. BARPETA VERSUS STATE OF ASSAM 2:MD. SHAHJAHAN ALI S/O LATE NOOR NABI. VILL - BORBHITA P.S. KALGACHIA DIST.-BARPETA ASSA Advocate for the Petitioner : MR.M R CHOUDHURY, MR.Z RAHMAN,MRM H AHMED Advocate for the Respondent : MS. J PAUL, PP, ASSAM, Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 13/10/2025 Heard Mr. M H Ahmed, learned counsel for the appellant. Also heard Mr. M P Goswami, learned Additional Public Prosecutor, Assam appearing for the State and Ms. J Paul, learned counsel appearing for the respondent No. 2. 2. The present appeal has been instituted by the appellant assailing the judgment dated 21.12.2013 passed by the learned Sessions Judge, Barpeta, in Sessions Case No. 165/2012, convicting the appellant, herein, under Section 354 IPC and sentencing him to undergo Rigorous Imprisonment for 2 (two) years along with a fine of Rs.2,000/- (Rupees Two Thousand), in default, to undergo Rigorous Imprisonment for another 3 (three) months. 3. The prosecution case in brief is that on 08.05.2012, the informant, Md. Shahjahan Ali had lodged an FIR with the Officer-in-Charge, Barbhita Police Outpost, inter-alia, alleging that on 28.12.2010 at around 2:00 PM, the accused, Fozlur Rahman had enticed away his minor daughter, aged about 6 (six) years from his lawful custody to sexually molest her in a field situated on the Northern side of his house. It was further alleged that at that time, some persons witnessed the incident and had informed him and thereafter, the accused was caught red handed at the place of the occurrence and his minor daughter was rescued. On receipt of the said FIR, the Officer-in-Charge of Barbhita Police Outpost made a G.D. Entry and thereafter, forwarded the FIR to the Officer-in-Charge of Kalgachia Police Station for registering the case. Accordingly, Kalgachia P.S. Case No. 78/2012 under Sections 376/511 IPC came to be registered. The investigation in the matter having already been initiated by the In-charge, Barbhita Police Outpost, he was entrusted with the investigation of the case after the registration of the said FIR. On conclusion of the investigation, police laid a charge-sheet against the appellant, herein, under Sections 376/511 IPC. The case on being committed to the Court of Sessions Judge, Barpeta, charge under Sections 376/511 IPC came to be framed against the appellant, herein. The charge on being read over and Page No.# 3/5 explained to the appellant, herein, he having pleaded not guilty and claimed to be tried, a trial ensued. During the trial, the prosecution examined 5 witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C. The accused also in support of his case adduced 1 witness as defence witness. On conclusion of the trial, the learned Trial Court upon appreciating the evidences coming on record proceeded to convict the appellant, herein, under Section 354 IPC and sentenced him to undergo imprisonment for 2 (two) years along with payment of fine of Rs.2000/- (Rupees Two Thousand), in default, to undergo Rigorous Imprisonment for further 3 (three) months. Being aggrieved, the appellant, herein, has instituted the present proceeding. 4. I have heard the learned counsel for the parties and also perused the materials available on record. 5. The learned Trial Court, upon appreciating the evidences coming on record, was pleased to acquit the appellant, herein, from the charge framed against him under Sections 376/511 IPC. 6. On a perusal of the conclusions drawn by the learned Trial Court towards acquitting the appellant, herein, from the charge framed against him under Sections 376/511 IPC, it is found that the same is based on a due and proper appreciation of the evidences coming on record and accordingly, the said acquittal of the appellant, herein, from the charges framed against him under Sections 376/511 IPC would not mandate any interference by this Court. 7. The learned Trial Court upon acquitting the appellant, herein, from the charge framed against him under Sections 376/511 IPC, on appreciation of the evidences coming on record, had found that the offence under Section 354 IPC was found to be established against the appellant, herein, basing on the materials coming on record. 8. The learned Trial Court in this connection had drawn the following conclusions: “8. On the other hand, if we analyse the facts of the present case it would emerge that the accused has committed the offence under Section 354 of the Indian Penal Code. It is proved from the evidence on record that the accused carried the minor victim (PW1) from her house by enticement from the custody of her parents without their knowledge in a field and used Page No.# 4/5 criminal force against her by removing her half pant intending that he would thereby outrage her modesty. Thus, the ingredients of Section necessary to constitute offence under Section 354 of the IPC are made out against the accused. It may be mentioned that though the accused was not charged under Section 354 of IPC, but he has been charged with a major offence under Sections 376/511 of IPC and the said charges having not proved, the accused may be convicted to a minor offence though he was not charged with which is within the scope of Section 222 of the Code of Criminal Procedure without any prejudice to the accused in that respect. Therefore, I am constrained to hold that the accused Fozlur Rahman is guilty under Section 354 of the Indian Penal Code and accordingly convicted thereunder.” 9. This Court has perused the conclusions drawn by the learned Trial Court and finds that the same is supported by the evidences coming on record, more particularly, the evidence adduced in the matter by the victim, PW1. 10. The PW1, both in her statement made under Section 164 Cr.P.C. as well as during her deposition in the trial was consistent with regard to the offence committed upon her by the appellant, herein. The victim had categorically adduced evidence to the effect that she was enticed away by the accused, herein, to a field and thereafter, by using criminal force against her had removed her half pant intending to outrage her modesty. It is found that the ingredients of Section 354 IPC are made out against the accused, herein. 11. In view of the above conclusions drawn by this Court, this Court does not find any infirmity with the conviction of the appellant, herein, by the learned Trial Court and accordingly, the said conviction would not mandate any interference by this Court. 12. Having drawn the above conclusions, this Court finds that the offence was committed by the appellant, herein, on 28.12.2010. The learned Trial Court while proceeding to sentence the appellant, herein, although had noticed the provisions of the Probation of Offenders Act, 1958, however, by only considering the nature of the offence committed by the appellant, herein, declined to extend the benefits under the Act of 1958 to the appellant, herein. 13. Considering the long lapse of time occasioned after the commission of the offence by the appellant, herein, and also considering the fact that the appellant, herein, was not proceeded against for an offence of similar nature prior to 28.12.2010 and thereafter and further noticing that the appellant, herein, has been litigating the matter initially before the learned Trial Court and thereafter, Page No.# 5/5 in the present appeal before this Court, this Court is of the considered view that the appellant, herein, is entitled to be extended the benefits under the provisions of the Probation of Offenders Act, 1958. The said benefit being permissible to be granted by this Court in exercise of its appellate jurisdiction, this Court extends the benefit under the Act of 1958 to the appellant, herein. 14. Accordingly, for the reasons recorded, hereinabove, the appellant, herein, is given the benefit under the Act of 1958 and the sentences modified to the effect that instead of sending the appellant to jail, he should be given the benefit under Section 4 of the Probation of Offenders Act, 1958. 15. This Court has only modified the sentencing with regard to imprisonment of the appellant, herein, and the fine as imposed by the learned Trial Court not having been interfered with, the appellant, herein, would be liable to deposit the fine amount. 16. In view of the above discussion, it is directed that the appellant, herein, will file two sureties to the tune of Rs.15,000/- each, along with a personal bond before the learned Sessions Judge, Barpeta and undertake to the effect that the appellant, herein, shall maintain peace and good behaviour during the period of 1 (one) year from the date of filing of the bond. The aforesaid bond be filed by the appellant within a period of 1 (one) month from the date of this order along with the deposit of the fine amount as imposed by the learned Trial Court vide judgment dated 21.12.2013. 17. With the above observations and directions, the present appeal stands disposed of. 18. Send down the records of the case to the learned Trial Court along with a copy of this order for information and necessary action. JUDGE Comparing Assistant