Page No.# 1/13 GAHC010014002013 2025:GAU-AS:13394 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./400/2013 JULHASH ALI @ JULU SK. S/O MOHIM ALI, R/O VILL. DUBACHURI PT.I, PO. BARKANDA, PS. BILASIPARA, DIST. DHUBRI, ASSAM. VERSUS STATE OF ASSAM - Advocate for the Petitioner : MR.M HUSSAIN, MR.H R AHMED,MR.M U MONDAL,MR.M R KHANDAKAR Advocate for the Respondent : , ,,PP, ASSAM Page No.# 2/13 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : 18.09.2025 Heard Mr. M. Hussain, learned counsel for the appellant. Also heard Mr. B. Sharma, learned Additional Public Prosecutor, appearing for the State Respondents. 2. The appellant by way of instituting the present proceedings has assailed the Judgment dated 25.11.2013, passed by the learned Additional Sessions Judge, Bilasipara Circuit Court, Dhubri, in Sessions Case No.106/2011, convicting the petitioner, herein, under Sections 448/354 IPC, and sentencing him to undergo Simple Imprisonment of 6(six) months along with payment of fine of Rs.1000/-(Rupees One Thousand) in default to undergo Simple Imprisonment for further 1(one) month for the offence under Section 448 IPC, Simple Imprisonment for 2(two) years and fine of Rs.5000/-(Rupees Five Thousand) in default to undergo further Simple Imprisonment for 2(two) months for offence under Section 354 IPC. 3. The prosecution case in brief is that one Rabia Bibi, on 09.04.2008, had lodged an FIR before the Officer-in-Charge of Bilasipara P.S., inter alia, alleging thereon, on 08.04.2008 at about 10.30 a.m, the appellant, herein, had illegally entered into the house of the informant and embraced her 9(nine) years old daughter and thereafter by making, her naked tried to commit sexual intercourse with her forcefully. It was further stated that Page No.# 3/13 the daughter of the informant had started shouting, upon hearing her alarm, the husband of the informant who was sick came to the place of the incident somehow and recovered his daughter in a naked state from the custody of the appellant and the appellant had fled away from the place. The said FIR was registered by the police as Bilasipara P.S. Case No.93/2008 under Sections 448/376/511 IPC. On conclusion of the investigation, the police laid charge-sheet against the appellant, herein, under Sections 448/376/511 IPC. 4. The Trial Court thereafter framed charge against the appellant, herein, under Sections 448/376/511 IPC. The appellant on being read over and explained the charge, pleaded not guilty and claimed to be tried and accordingly Trial ensued in the matter. During the Trial prosecution had examined as many as 6(six) witnesses. Thereafter, the appellant was examined under Section 313 CrPC. The learned Trial Court upon conclusion of the Trial had appreciated the evidences coming on record and proceeded to convict the appellant, herein, under Sections 448/354 IPC and thereafter sentenced him as noticed hereinabove. Being aggrieved the appellant had instituted the present proceeding. 5. Mr. M. Hussain, learned counsel for the appellant by referring to the evidences coming on record has submitted that the learned Trial Court had not appreciated the evidences coming on record in its due and proper perspective and the findings arrived at leading Page No.# 4/13 to the conviction of the appellant in the matter are clearly perverse. By referring to the evidence adduced by PW-1 Rabia Bibi, mother of the victim, as well as PW-2 Nayeb Ali, father of the victim, submits that the same are contradictory and would not mandate acceptance. Accordingly, the conviction of the appellant basing on the statement of the deposition evidences adduced by PW-1 and PW-2 would not mandate an acceptance by this Court. 6. The learned counsel for the appellant has submitted that the evidence of PW-4 i.e. the victim girl would bring on record that at the time of the commission of the offence upon her, she had deposed that she was sleeping in cowshed, whereas the evidence of the PW-1 as well as PW-2 would bring to the forefront that the offence was committed inside the house. He submits that the said contradiction having come on record, with regard to the place of commission of the offence, a doubt has arisen in the matter as regards the commission of an offence by the appellant, herein, and the benefit thereof ought to have been extended to the appellant, herein. The learned counsel for the appellant have submitted that the PW-1, PW-2, PW-3 and PW-4 are relatives and accordingly they being interested witnesses, their evidence bein not corroborated by any independent witness, the Trial Court ought not to have given credence to the said evidence brought on record by the said witnesses. 7. The learned counsel for the appellant by referring to the evidence of PW-1, PW-2, PW-3 and PW-4 has submitted that the same would reveal that there is a pending of criminal proceedings Page No.# 5/13 between the parties, however, the learned Trial Court failed to appreciate the contention of the appellant, herein, that the present case was hoisted upon the appellant, herein, only to take revenge for the proceedings instituted by the appellant and his family members against the family of the victim girl. In the above premises, the learned counsel for the appellant submits that the conviction of the appellant by the learned Trial Court would mandate an interference from this Court. 8. Per contra, Mr B. Sharma, learned Additional Public prosecutor, has submitted that the offence having been so committed by the appellant, herein, within the premises of the residence of the victim girl, it is natural that during that time the presence of only her family member can be expected. He submits that the evidence adduced in the matter by the victim girl as PW- 4 and by her parents as PW-1 and PW-2, are direct evidences and the appellant during their cross-examination had not dislodged the such depositions made. Accordingly, he submits that the conviction of the appellant, herein, under Section 448/354 IPC would not mandate any interference by this Court. 9. I have heard the learned counsel for the parties and also have perused the materials coming on record. 10. For the purpose of appreciating the rival contention raised in the matter by the learned counsel for the parties as well as for appreciating the conclusion reached in the matter by the learned Trial Court, this Court would now examine the evidences adduced in the matter by the witnesses. Page No.# 6/13 11. The informant deposed as PW-1 and during her deposition had deposed that the victim girl was her daughter who was 9(nine) years old at the relevant point of time. She further deposed that on the date of the incident she was busy in the kitchen and at that point she had heard a sound of scuffle and had come from her kitchen to the room. She found that the clothes of her daughter were removed and she was naked. She further deposed at the relevant point of time, the appellant was found inside the room and the scuffle had taken place between her daughter and the appellant. She further deposed that she had thereafter raised alarm and people from the locality reached their house. The appellant was deposed to have been caught later on. During her cross-examination she submitted that at the relevant point of time she and her husband were only present at their house and also deposed that prior to that incident a case had occasioned between the appellant and her husband, which was pending, wherein her husband is one of the accused. 12. PW-2 the father of the victim deposed that at the time of the commission of the offence by the appellant, herein, upon his daughter, he was suffering from paralysis and was lying on the bed. He further deposed that he heard cries of his daughter from the cowshed herein, and after hearing the cries of his daughter he reached there and had found his daughter in naked condition and also found the appellant scuffling with her. He further deposed that he had then had called his wife to see the incident. During his cross-examination PW-2, stated that there was a case Page No.# 7/13 pending between him and the father of the appellant wherein, he was one of the accused. He further deposed at the time of the incident only the family members were present in the house. 13. PW-3 who is the uncle of the victim girl deposed that on the date of the incident he was present at his house and was called by his elder brother Nayab Ali(PW-2) to come to his house. He further deposed on reaching the house of his elder brother he was told about the incident 14. PW-4, the victim girl deposed that at the relevant point of time she was only 9(nine) years old and was sleeping in the cowshed. She further deposed that the appellant herein, had come there and removed her clothes. She deposed that at that point of time she started crying and on hearing her cries, her parent came to the cowshed. She further deposed that the villagers also come to the place of the incident but the appellant had fled away. She deposed that her statement under Section 164 CrPC was recorded before the Court. During her cross-examination she deposed that it was her father who came to the place of occurrence first. She also deposed that the other persons from the village had arrived after the incident. 15. PW-5, the Investigating Officer deposed that the case was initially investigated by the Investigating Officer Juran Ali and after going through the Case Diary, PW-5 deposed that, he had submitted the charge-sheet against the appellant, herein, on finding a prima facie case against him. Page No.# 8/13 16. PW-6 is the initial Investigating Officer who during his deposition stated that he had on the case being assigned to him investigated into the matter. He also deposed that he had recorded the statement of the informant, victim girl and her father and had also got the statement of the victim girl recorded under Section 164 CrPC. During his cross-examination he deposed that he had received the Ejahar one day after the date of the occurrence and no explanation was set out in the Ejahar for the delay occasioning in lodging the same. During his cross he also deposed that the PW- 2, father of the victim girl had not stated before him that on the date of the incident he was lying on bed due to paralysis and and had also not stated to have heard the cries from the cowshed nor he had called his wife to see the incident. PW-6 deposed that the incident occasioned in a dwelling house. 17. On appreciating the evidence coming on record, this Court finds that the deposition of the PW-4 i.e. the victim girl that the incident had occasioned in the cowshed is supported by the deposition of her father as PW-2, who had also deposed that he had heard cries of his daughter from the cowshed. Accordingly, the contradiction which is tried to be projected from the deposition of PW-1 i.e the mother of the victim girl of the incident to have not occasioned in the cowshed but inside the house, in the considered view of this Court is a minor contradiction which had occasioned, however the same is not fatal to the case of the prosecution. The deposition of the victim girl as PW-4 during the Page No.# 9/13 Trial is consistent with the statement recorded by her under 164 CrPC. Further the deposition of the PW-4 also brings to the forefront that on hearing her cries it was her father who had come to the scene first, which is also corroborated by the evidence of her father as PW-2, wherein, he had deposed that on hearing the cries he had initially found his daughter naked and also found the appellant scuffling with her and that thereafter he had called his wife i.e. the informant, to see the incident. Accordingly, presence of the appellant with the victim girl in the cowshed and the victim girl to be in a naked and the appellant found to be scuffling with her is established from the evidence adduced by the PW-1, PW-2 and PW-4. Further the age of the victim girl which was projected 9(nine) years was not disputed by the appellant in the matter. However, this Court finds that the appellant had not committed sexual intercourse with the victim girl but had attempted to do so. Accordingly, the appellant having illegally entered into the house of the victim girl and thereafter made an attempt to have sexual intercourse with her by removing her clothes, scuffling with her, after having made her nude, forcefully, this Court finds that the ingredients of the offence under Sections 448/354 IPC stood established against the appellant beyond reasonable doubt. Although the offence under Section 376 IPC for which he was charged was not established in the mater. 18. Having drawn the said conclusion, this Court would examine Page No.# 10/13 the conclusion drawn by the learned Trial Court in the matter. The conclusions drawn by the learned Trial Court being relevant, the same is extracted, hereinbelow ; “7. I have heard both sides. While appreciating the evidences I would like to discuss the evidence of the Victim PW 4. At the relevant time of incident while she was sleeping in cowshed, the accused came there and removed her clothes. The victim then started crying and on hearing her cries her parents came to the cowshed. The villagers also came to the place of incident but, the accused had fled away. She was brought before the court and her statement was recorded before magistrate. PW 2 corroborated the occurrence of the Incident by deposing that on the day of the incident he heard cries of his daughter from cowshed. When he went there after hearing the cries of his daughter, he had found his daughter naked and also found the accused doing scuffle with her. Then he had called his wife i.e. complainant to see the incident who also corroborated the incident as she heard a sound of scuffle between the victim and the accused and found that the clothes of her daughter (Victim) were removed and she was naked. But the accused was found in the room and the scuffling took place between her daughter and the accused. When she had raised alarm other people from the locality reached there. Page No.# 11/13 8. As regards age of the victim, she and PW 1 her mother (Complainant) have deposed that the victim was 9 years old at the relevant time of the incident. In the absence of any documentary evidence in respect of the age of the victim, the oral evidence is quite reliable in respect of age of the victim. 9. In this case, the incident occurred on 8.4.08 and at the relevant time of the incident the age of the victim was only 9 years. It is established that the accused first started illegally entered into the house of the complainant and made an attempt to have sexual intercourse with the victim girl by removing her clothes. The accused removed her clothes by scuffling with her and made her nude forcefully. From the evidences it is seen that that the accused had attempted to have sexual intercourse with the victim by using criminal force but failed to succeed in the attempt. Therefore, the accused had committed offence U/S. 354 IPC. 10. In every crime, there is first intention to commit it, secondly to commit it, thirdly, attempt to commit it. If the third stage, i.e. the attempt is successful, then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the person attempting the act. An attempt' is made punishable, because every attempt, although it fails of success, must create alarm, which, of itself, is an injury and the Page No.# 12/13 moral guilt of the offender is the same as if he had succeeded. In between complete rape and attempt to commit it, there is a grey area covered by Section 354 IPC i.e. assault or criminal force to outrage modesty or indecent assault. The dividing line between two is not only thin but also practically invisible. For an attempt to commit rape the prosecution must establish that it has gone beyond the stage of preparation. In order that a person may be convicted of an attempt to commit a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitute the actus reus of a criminal attempt. The sufficiency of actus reus is a question of law which has presented difficulties because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. Definitions of attempt to commit crime are dangerous things and the only safe way is to consider the facts of the particular case and to decide it in accordance with the dictates of common sense. 11. After hearing the both sides and having regards to the evidences laid, I am of the view that the prosecution has been able to establish the case U/S. 448 IPC and 354 IPC against the accused beyond all reasonable doubt. Accordingly, I have found him guilty.” Page No.# 13/13 19. On a perusal of the conclusions drawn by the learned Trial Court, this Court finds that the same is to be based on a proper and due appreciation of the evidences coming on record more particularly the evidences adduced by the PW-1 PW-2 and PW-4 in the matter. Accordingly, this court is of the considered view that the said conclusions drawn by the learned Trial Court would not mandate any interference. Accordingly the conviction of the appellant, herein, under Section 448/354 IPC would also not mandate any interference. 20. In view of the above conclusions reached by this Court, the conviction of the appellant, herein by the learned Trial Court being found to not suffer from any infirmity, the said conviction stands upheld. The appeal accordingly, is found to be devoid of any merit and the same consequently stands dismissed. The appellant, herein, is directed to surrender before the learned Trial Court within a period of 1(one) month from today to undergo the remaining period of his sentencing as well as to deposit the fine amount as ordered by the learned Trial Court in the matter. 21. Registry to send down the records of the case to the learned Trial Court along with a copy of the present order for information and necessary action. JUDGE Comparing Assistant