Sandip Chitrakar @ Barka vs The State Of West Bengal & Anr
2022 Latest Caselaw 2977 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Criminal Appellate Jurisdiction
                            Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


     I.A. No. CRAN 1 of 2008 (Old No. CRAN 167 of 2008)
                              in
                      CRR 1619 of 2007


                   Sandip Chitrakar @ Barka
                              Vs.
                The State of West Bengal & Anr.


For the petitioner :   Mr. Dipanjan Chatterjee, Adv.,
                       Mr. Kalyan Kumar Bhattacharjee, Adv.,
                       Mr. Arun Kumar Ray, Adv.,
                       Mr. Subrata Biswas, Adv.,
                       Ms. Reshmi Khatun, Adv.


For the State      :   Mr. Sandip Chakraborty, Adv.


Heard &
Judgment on        :   19.05.2022


Bibek Chaudhuri, J.

The instant criminal revision is directed against the judgment

and order dated 17th April, 2007 passed by the Learned Additional

Sessions Judge, 8th Fast Track Court at Bichar Bhawan in Criminal

Appeal No. 32/2006, thereby affirming the judgment and order of

conviction and sentence dated 27.02.2006 passed by the Learned

Metropolitan Magistrate, 7th Court, Calcutta in connection with G. R.

Case No. 764/2001.

The petitioner was convicted for committing the offence under

Section 354 of the Indian Penal Code and sentence to suffer rigorous

imprisonment for one year and to pay a fine of Rs.2,000/-, in default,

to suffer rigorous imprisonment for one month. On the basis of a

written complaint submitted by one Mamata Pal on 10 th March, 2001

alleging, inter alia, that when she was washing her hands under a

water tap situated in front of her house, an unknown person came to

collect water from the said tap. Over collecting of water an

altercation started between the de facto complainant and the said

unknown person. In the meantime, the accused came to the spot

engaged in altercation and amidst such altercation he assaulted her,

pulled her hand and outraged her modesty tearing 'Blouse' worn by

her. Police registered a case under Section 354 of the Indian Penal

Code and after investigation submitted charge-sheet against the

accused. In the charge-sheet, the Investigating Officer cited the de

facto complainant and her two sisters as witnesses beside one John

who was not examined during trial.

It is contended by the petitioner that the Learned Trial Court

recorded an order of conviction under Section 354 of the Indian Penal

Code against the appellant on the basis of the evidence adduced by

the de facto complainant and her two sisters. According to the

petitioner, all the three witnesses are interested witnesses though the

de facto complainant admitted in her evidence that many local people

assembled at the place at the time of occurrence, nobody resisted the

accused from outraging modesty of the de facto complainant. The

prosecution did not cite any of such local disinterested person from

the said locality to adduce evidence in support of the prosecution.

Therefore, the Learned Trial Judge acted illegally and with material

irregularity in relying on the evidence of the interested witnesses.

It is further submitted by the Learned Advocate for the

petitioner that the de facto complainant in her written complaint

stated that the accused outraged modesty of the de facto complainant

tearing her 'Blouse' but in the evidence she stated that the accused

tore the upper portion of her 'Churidar' which she was wearing at the

time of occurrence. P.W. 3, on the contrary, stated that the de facto

complainant was wearing a 'Blouse' at the time of occurrence and the

accused tore the said 'Blouse' and outraged her modesty. It appears

from the evidence of P.W. 2 that she only stated that the accused

pulled the clothes of her sister. The Investigating Officer did not seize

the wearing apparels. Therefore, there was no material before the

Court to come to a finding that actually de facto complainant's

modesty was outraged by the accused.

It is further submitted by the Learned Advocate for the

petitioner that in order to establish a charge under Section 354 of the

Indian Penal Code it is not necessary for the prosecution to prove

culpable intention of the accused. In the instant case, there is

absolutely no evidence to show the culpable intention of the accused.

Accordingly, the impugned judgment cannot be sustained and the

Learned Court of appeal also committed the same mistake while

deciding the appeal filed by the petitioner against the judgment and

order of conviction and sentence passed by the Learned Trial Court in

G.R. 764/2001.

Learned Public Prosecutor-in-Charge, on the other hand,

submits that the law of evidence does not say that the evidence of the

related witnesses shall be discarded all together. The property of

appreciation of evidence suggests that the Court must scrutinize the

evidence-on-record very closely to find out as to whether there is any

inherent discrepancy in the evidence of the related witnesses. If it is

proved that they are interested in the outcome of the case or its final

result, the evidence of the related witnesses are subject to close

scrutiny.

In the instant case, it is submitted by the Learned Public

Prosecutor-in-Charge there is absolutely no suggestion that there was

enmity between the de facto complainant and the accused before the

date of the alleged incident. It is also submitted by him that it is our

common experience that generally the neighbours do not want to

involve themselves in a criminal case and it is of utmost difficult for

the Investigating Agency to collect independent witnesses especially

in respect of the offences involving harassment of a woman. It is

further submitted by him that the order of conviction and sentence

was subject to scrutiny by the Court of appeal and the Learned

Additional Sessions Judge, 8th Fast Track Court at Bichar Bhawan

dismissed the appeal filed by the petitioner confirming the order of

conviction and sentence passed against the accused.

At this stage it has come before this Court to decide as to

whether concurrent finding of fact can be disturbed sitting in

revisional jurisdiction by this Court or not. It is no longer res integra

that in exercise of this revisional jurisdiction the Court ought not

repreciate the evidence and disturb the concurrent finding of fact

reached by two Courts below. It is needless to say that exercising a

revisional jurisdiction of finding of fact may be called upon to question

when such finding is absolutely perverse. The learned advocate for

the petitioner made any such submission that the finding of the

Courts' below on the basis of evidence on record are absolutely

perverse and should be outrightly dismissed. In Chandrababu

versus the State: (2015) 8 SCC 774, the Apex Court had the

occasion to consider the scope of revisional jurisdiction of the High

Court. The Apex Court observed as follows:-

"We shall dwell upon the issue whether the High

Court, in exercise of the revisional jurisdiction, should have

adverted to the merits of the case in extenso as the factual

matrix would reveal but the learned counsel had dwelt upon

in Court on the statements of the witnesses to arrive at the

conclusion that there are remarkable discrepancies with

regard to the facts and there is nothing wrong with the

investigation. In fact, he has noted certain facts and

deduced certain conclusions which, as to whether find, are

beyond the exercise of revisional jurisdiction. It is well

settled in law that inherent as well as revisional jurisdiction

should be exercised cautiously and clearly and the revisional

jurisdiction should be exercised on a question of law.

However, factual appreciation is involved, then it must find

place in the class of cases resulting in a perverse finding.

Basically the power is required to be exercised so that

justice is dumb and there is no abuse of power by the

Court."

In State versus Yelamati: (2001) 10 SCC 728 the Supreme

Court was pleased to set aside an order of the High Court where the

High Court set aside the order of conviction on the ground of

contradictions and discrepancies in evidence without pointing out to a

single discrepancy or contradiction. The conclusion arrived at in such

a manner without stating any reason thereafter resulted in improper

exercise of revisional jurisdiction.

In the instant case the learned advocate for the petitioner has

pointed out only one contradiction to the effect that the de facto

complainant stated in her written complaint that the accused pulled

and tore the blouse of the de facto complainant but in her evidence

she stated that the accused tore the upper part of her 'Churidar'

(Kamiz). Even assuming that such discrepancy is in the evidence of

the prosecution. However, such discrepancy or contradiction does not

render the ultimate decision of the Court of trial which was also

affirmed by the First Court of Appeal because what is important is as

to whether the accused pulled her wearing apparel or not. The

evidence of the de facto complainant was corroborated by her sisters.

No perverse enmity was suggested against the accused. Under such

circumstances, the learned trial Judge came to a conclusion that the

accused is liable to be convicted on finding of fact. The said fact was

affirmed by the First Court of Appeal. The impugned order cannot be

said to be perverse.

Therefore, this Court does not have the authority in exercising a

revisional jurisdiction to come to an alternative finding of fact involved

in this case.

For the reasons stated above, I do not find any ground to

interfere with the judgment passed by the learned Court of Appeal

affirming the judgment and order of conviction and sentence passed

by the trial Court.

The instant revision is liable to be dismissed and accordingly the

same is dismissed on contest, however, without costs.

With regard to sentence, this Court is of the view that during

trial or in appeal it has not been proved that the accused is a habitual

offender or is involved in some offence. The incident took place over

collection of water from a common water tap. Such type of incident is

very common in the city of Kolkata where people have to involve in

altercation, quarrel, jostling and sometimes free fighting amongst

themselves to collect water. Considering the fact that this is the first

offence committed by the petitioner, in all fitness of the matter this

Court is of the view that for such offence the accused should be kept

under the custody of Probation Officer under the provisions of the

Probation of Offenders Act, 1958.

Therefore, in exercise of the power conferred under Section 4 of

the Probation of Offenders Act, the petitioner be released on probation

of good conduct for a period of one year.

The petitioner is directed to surrender before the trial Court and

the trial Court shall place the petitioner under the custody of the

Probation Officer for a period of one year. The Probation Officer shall

be directed to file quarterly report as to the good conduct of the

convict and on consideration of the reports of the Probation Officer,

the trial Judge is at liberty to release the accused after the expiry of

the said period of probation of one year.

Let a copy of this order be sent to the Court below immediately

for information and compliance.

The server copy of this order duly countersigned by the

Assistant Court Officer of this Court be handed over to the learned

advocate for the petitioner for his compliance.

( Bibek Chaudhuri, J. )