Page No.# 1/6 GAHC010252192014 2025:GAU-AS:14332 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./65/2014 MANIK BARMAN @ MANIK CH. ROY S/O LT. ABANI BARMAN, VILL. MANDAR PARA, PS. GOSSAIGAON, DIST. KOKRAJHAR, ASSAM. VERSUS STATE OF ASSAM and ANR. ASSAM 2:BINA BARMAN W/O NASHIL BARMAN R/O VILL. MANDARPARA PO. BHAURAGURI PS. GOSSAIGAON DIST. KOKRAJHAR ASSAM PIN-78333 Advocate for the Petitioner : MR.A T SARKAR, MR.M I HUSSAIN,MR.M ALI,MR.M U MAHMUD,MR.H R CHOUDHURY,MR.S HOQUE Advocate for the Respondent : MR. A A R KARIM, ,,,,PP, ASSAM,MR J HUSSAIN,MS. R BEGOM Page No.# 2/6 BEFORE HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER 15/10/2025 Heard Mr. M U Mahmud, learned counsel for the petitioner and Mr. M P Goswami, learned Additional Public Prosecutor, Assam for the State respondent. 2. The present appeal has been instituted by the appellant, herein, assailing the judgment and order dated 23.05.2013 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No. 46/2010, convicting the appellant, herein, under Sections 457/354 IPC and sentencing him to suffer Rigorous Imprisonment for 3 (three) years and to pay a fine of Rs.1,000/- (Rupees One Thousand) for the offence under Section 457 IPC, in default, of payment of fine, to suffer further Rigorous Imprisonment for 1 (one) month and further, to suffer Rigorous Imprisonment for 1 (one) year along with a fine of Rs.1,000/- (Rupees One Thousand), for the offence under Section 354 IPC, in default, of payment of fine to suffer further Rigorous Imprisonment for 1 (one) month. 3. The prosecution case in brief is that the victim girl had lodged an Ejahar on 30.01.2009 with the Bhouraguri Police Outpost under Gossaigaon Police Station to the effect that on 27.01.2009 at around 1:00 AM at night, the appellant, herein, Manik Barman, taking advantage of the absence of her husband in the house, came to her house and called on the victim girl to open the door, the victim had not opened the door. It was alleged that the appellant, herein, entered into the house by breaking open the door and tried to rape her. The victim caught hold of the accused and raised an alarm. At that relevant point of time, the accused made himself free from the clutches of the victim girl and by giving a teeth bite upon her right hand, he fled away from the place. It was further stated that the appellant, herein, had left behind a three battery torch light in her house. On receiving the Ejahar, the In-charge, Bhouraguri Police Outpost made a G.D. Entry of the same and forwarded the same to the Officer-in-Charge of Gossaigaon Police Station for registering a case. Accordingly, Gossaigaon P.S. Case No. 22/2009 under Sections 457/376/511 IPC came to be registered. Police on completion of the investigation, submitted a charge-sheet against the appellant, Page No.# 3/6 herein, under Sections 457/376/511 IPC. The matter came to be placed before the Court of learned Sub-Divisional Judicial Magistrate (S), Kokrajhar. The case was, thereafter, committed to the Court of learned Sessions Judge, Kokrajhar. The learned Trial Court, thereafter, framed a charge against the appellant, herein, under Sections 457/376/511 IPC and the same on being read over and explained to the appellant, herein, he having pleaded not guilty and claimed to be tried, a trial ensued in the matter. On conclusion of the trial, the learned Trial Court upon appreciating the evidences coming on record was pleased vide judgment and order dated 23.05.2013 to convict the appellant, herein, under Sections 457/354 IPC and sentenced him, as noticed, hereinabove. Being aggrieved, the appellant, 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 found that the charge against the appellant, herein, under Sections 376/511 IPC was not established beyond a reasonable doubt. Thereafter, basing on the evidences coming on record, the learned Trial Court concluded that the charge against the appellant, herein, of commission of offence under Section 354 IPC stood established beyond a reasonable doubt. 6. The learned Trial Court in this connection had drawn the following conclusions:- “In the light of the aforesaid observation of the Apex Court, there is no material available on record go to show that the accused person was determined to have sexual intercourse in all events with victim X. she in her evidence only stated that the accused entered into her house by breaking open the door. Thereafter, the accused caught hold of her both hands and stated that he loved her. She turned down the offer saying that she had her husband and children. Then the accused tried to perform sexual intercourse with her i.e., to rape her. She raised shouting by catching the neck of the accused. Then the accused managed to fly away by giving a teeth bite on the left hand of her. She in her evidence did not say in that manner the accused tried to rape her. There is nothing in her evidence that the accused had removed her under garments and the accused himself also by removing his under garments exposed her genital. From her evidence, what has been come out is that the Page No.# 4/6 accused had failed in his preparation to commit rape upon the victim X. In the facts and circumstances of the case, the offence cannot be said to be of attempt to commit rape to attract culpability under Sections 376/511 IPC with victim X. the act of catching of both hands of the victim X by the accused and applying force for sexual intercourse upon her body would amount to outrage the modesty of victim X. 22. In this case, the charge was framed against the accused person under Sections 376/511 of IPC. But, after consideration of the facts and circumstances of the case, the charge u/s 354 of IPC is proved against the accused person. As per provision of Section 222(2) of Cr.P.C., there is no bar in convicting the accused under Section 354 IPC (minor offence) though the charge was not framed under Section 354 IPC as the offence under Section 354 IPC is cognate to the major offence under Sections 376/511 IPC. 23. Because of what have been discussed and pointed out here in above, I am of the firm view that the prosecution side has been able to prove beyond all reasonable doubt the charges under Sections 457, 354 IPC against the accused person. I therefore, hold the accused person guilty under Section 457, 354 IPC and convict him under the aforesaid sections of IPC accordingly.” 7. Basing on the said conclusions, the learned Trial Court sentenced the appellant, herein, in the following manner:- “26. I sentence the accused person to suffer R.I. for three years and to pay a fine of Rs.1000/- (Rupees One Thousand only) for offence under Section 457 of IPC. In default of payment of fine, the accused person is to suffer R.I. for 01 (one) month. I also sentence the accused person to suffer R.I. for one year and to pay a fine of Rs.1,000/- (Rupees one thousand only) for the offence under Section 354 of IPC. In default of payment of fine, the accused person is to suffer R.I. for 01 (one) month. The both sentences will run concurrently.” 8. This Court has perused the conclusions drawn by the learned Trial Court and finds that the same has been so drawn basing on a due and proper appreciation of the evidences coming on record. 9. The materials brought on record has demonstrated commission of an offence by the Page No.# 5/6 appellant, herein, punishable under Sections 457 and 354 IPC. 10. In view of the above conclusions drawn by this Court, this Court is of the considered view that the conviction of the appellant, herein, by the learned Trial Court would not mandate any interference. 11. Having noticed the above position and having upheld the conviction of the appellant, herein, under Sections 457/354 IPC, this Court finds that the learned Trial Court while proceeding to sentence the appellant, herein, had noticed the provisions of the Probation of Offenders Act, 1958, but had refused to extend the benefit thereunder to the appellant only by noticing the gravity of the offence committed by the appellant, herein. 12. Considering the long lapse of time occasioning 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 either prior to commission of offence involved in the present proceeding and/or during the pendency of the proceedings against him, and further noticing that the appellant, herein, has been litigating the matter initially before the learned Trial Court and thereafter, 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. 13. Accordingly, for the reasons recorded, hereinabove, the appellant, herein, is given the benefit under the Act of 1958 and the sentence stands modified to the effect that instead of sending the appellant to jail, he should be given the benefit under the provisions of the Probation of Offenders Act, 1958. 14. 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. 15. In view of the above discussion, it is directed that the appellant, herein, will file two sureties to the tune of Rs.15,000/- (Rupees Fifteen Thousand) along with a personal bond before the learned Sessions Judge, Kokrajhar 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, Page No.# 6/6 along with the deposit of the fine amount as imposed by the learned Trial Court vide judgment dated 23.05.2013. 16. With the above observations and directions, the present appeal stands disposed of. 17. 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