Tripura High Court
Sri Sanjoy Kumar Das @ Sanjoy Das vs The State Of Tripura on 8 January, 2021
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. 64 of 2016
Sri Sanjoy Kumar Das @ Sanjoy Das
Son of Lt. Amulya Das
resident of Vill-Bakbabi
PS: Kadamtala,
District-North Tripura
---- Petitioner(s)
Versus
The State of Tripura
---- Respondent(s)
For Petitioner(s) : Mr. A. Acharjee, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 18.12.2020
Date of pronouncement : 08.01.2021
Yes No
Whether fit for reporting :
√
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
1. By means of this revision petition, the judgment &
order dated 08.06.2016 delivered in Criminal Appeal 00000001
of 2016 by the Sessions Judge, North Tripura, Dharmanagar
has been challenged. The learned trial court by judgment &
order of conviction and sentence dated 23.12.2015 passed in
Crl. Rev. P. 64 of 2016
case No. ST (Type-2) 02 of 2015, convicted and sentenced the
petitioner as follows:
Sl. No. Offence Sentence
1. For offence punishable RI for 1 (one) year and
under section 363 IPC fine of Rs.5,000/- with
default stipulation.
2. For offence punishable RI for 1 (one) year and
under section 354 IPC fine of Rs.5,000/- with
default stipulation.
This judgment & order of conviction and sentence
passed by the trial court having been affirmed by the impugned
judgment of the learned Sessions Judge, the aggrieved
petitioner has preferred this criminal revision petition.
2. The facts of the case are as under:
Sri Sudhanya Nath, S/O-Sri Rabindra Nath of
Dharmanagar lodged a written complaint with the Officer in
Charge of Dharmanagar police station alleging, inter alia, that
on 02.09.2013 in the morning when his 12 years' old daughter
was going to her school, the petitioner, an auto driver, forcibly
lifted his daughter on his vehicle and got her seated beside him
on his seat and outraged her modesty inside the vehicle. As the
petitioner did not stop the vehicle even after crossing her
school, the victim jumped out of the vehicle to save herself. Sri
Crl. Rev. P. 64 of 2016
Madan Nath, driver of auto rickshaw bearing registration No.
TR-02-A-2661, who was carrying passenger in his vehicle along
the same road saw the petitioner lifting the victim into his
vehicle and informed the father of the victim who reported the
matter to police by lodging the FIR.
3. Based on his FIR, Dharmanagar P.S. case No. 166
of 2013 under sections 354, 366A and 511 of the Indian Penal
Code (IPC in short) was registered and the investigation of the
case was taken up.
4. During investigation, the statement of the victim
under section 164(5) Cr.P.C was recorded wherein she
supported the FIR case and stated that when she was going to
school at about 10.30 am on 02.09.2013 to sit for her
examination, the auto rickshaw of the petitioner stood in front
of her and the petitioner driver offered a lift to her for taking
her to her school. Initially, she disagreed. Though back seat of
the vehicle was vacant, the petitioner driver asked her to sit
with him on his seat. After she sat there, the petitioner started
driving his vehicle with one hand and he kept the other hand on
her breasts. When he did not stop the vehicle, inspite of
crossing her school, she started shouting for help. Thereafter,
she jumped from the vehicle to save herself. The petitioner
driver then fled away with his vehicle.
Crl. Rev. P. 64 of 2016
5. Sri Ashish Kr. Das, SI of police conducted the whole
investigation of the case and on completion of investigation he
submitted charge sheet No. 142 of 2013 against the petitioner
for having committed offence punishable under sections 354,
366A, 323 and 511 IPC. The said charge sheet was received by
the learned Jurisdictional Magistrate and cognizance of offence
was taken. After the case was committed to the court of
Sessions, it was transferred to the court of the Asstt. Sessions
Judge, Dharmanagar for trial.
6. The learned trial court framed charges of offence
punishable under sections 354 and 366 of the Indian Penal
Code. After the charges were read over and explained to the
petitioner, he pleaded not guilty to both the charges and
claimed a trial. During trial, as many as 10 (ten) witnesses
were examined on behalf of the prosecution including the first
informant father of the victim [PW-1], the victim [PW-7], the
medical officer [PW-8] and the investigating officer [PW-9].
Apart from the ocular testimony of these witnesses, 6 (six)
documents were also introduced on behalf of the prosecution.
After the closure of the prosecution evidence, statement of the
accused under section 313 Cr.P.C was recorded where the
accused petitioner stated that he did not drive the vehicle at
the time of occurrence. It was also stated by him that Sri
Madan Debnath had implicated him in a false case. He declined
Crl. Rev. P. 64 of 2016
to adduce any evidence on his defence. On appreciation of
evidence the learned trial court held the accused guilty of
offence punishable under sections 354 and 363 IPC and
convicted him for both of the offences. Having recorded the
reasons as to why the benefit of Probation of Offenders Act was
not given to the petitioner, the learned trial court sentenced
him as above. In appeal, the learned Sessions Judge affirmed
the said conviction and sentence. Hence this criminal revision
petition.
7. Heard Mr. A. Acharjee, learned counsel appearing
for the petitioner as well as Mr. S. Debnath, learned Addl. P.P
representing the State respondent.
8. Appearing for the petitioner, Mr. A. Acharjee,
learned counsel submits that there is no evidence to suggest
that the accused committed the alleged act. It is contended by
learned counsel that it was school time when the occurrence
allegedly took place and it was quite impossible for an auto
driver to pick up a girl from road and outrage her modesty at
that hour of the day in the midst of people and that too in an
open vehicle. Further submission on behalf of the defence is
that it was quite improbable that the girl would not have made
any sound when the offence was being committed to her
particularly when there were people and she could have easily
cried for their help. It is further submitted by Mr. Acharjee,
Crl. Rev. P. 64 of 2016
learned defence counsel that the petitioner had a family
consisting of his wife and children and it was quite unlikely that
he would have outraged the modesty of a school going girl of
her daughter's age. It is also submitted by Mr. Acharjee,
learned counsel that the various contradictions and
inconsistencies appearing in the evidence of prosecution
witnesses were not taken into consideration by the learned trial
court as well as the appellate court and as such the impugned
judgment is liable to be set aside.
9. Mr. S. Debnath, learned Addl. P.P on the other hand
submits that the accused petitioner by picking up a small girl
from her way to school and outraging her modesty and
committed a ghastly act for which he deserves punishment.
According to learned counsel, the judgments of the courts
below and their concurrent findings are based on proper
appreciation of evidence and therefore the impugned judgment
does not call for any interference in revision. Mr. Debnath,
learned Addl. P.P, therefore, urges the court for dismissing the
petition.
10. As noted, the learned trial court relied on the
evidence of 10 (ten) prosecution witnesses for deciding the
case. Among them, PW-1 is Sri Sudhanya Nath, father of the
victim who is also the first informant of this case. The PW is a
school teacher by occupation. On 02.09.2013 at around 11
Crl. Rev. P. 64 of 2016
O'clock he was in the school when he received a call from his
wife who told him that their daughter was admitted to
Dharmanagar hospital. He rushed to the hospital immediately
where he found his daughter [PW-7] lying with multiple injuries
on her knees, hands and her treatment was in progress. She
told the PW that when she was going to school from home at
around 10.30 am, the auto rickshaw of the petitioner stopped in
front of her near Joyram Chira mill. The driver offered a lift to
her for going to school. Initially she disagreed. The petitioner
kept pursuing her for boarding his vehicle. She then sat in the
front seat with the petitioner driver. The petitioner started
driving his vehicle with one hand and with the other hand he
touched the breasts of the victim and other parts of her body.
When his vehicle crossed her school, the victim jumped from
his vehicle as a result of which she received the injuries. She
reached her school with the injuries and told about the incident
to her school teacher Smt. Rita Nath [PW-10]. The victim could
not then tell the name of the driver. Sri Madanlal Debnath [PW-
5], helped PW-1 to identify the accused petitioner who was the
driver of auto rickshaw bearing registration No. TR-02-A-2954.
Immediately, thereafter, PW-1 lodged the FIR at the police
station.
Crl. Rev. P. 64 of 2016
In his cross examination, the PW stated that his
wife came to know about the incident from the school of her
daughter.
11. Sri Uttam Nath [PW-2] is the maternal uncle of the
victim. According to the PW, his sister, who is the mother of the
victim informed the PW that the victim received injuries in her
hands, knees and legs by falling from an auto rickshaw on her
way to school. Immediately, the PW went to the school of the
victim from where he came to know that the victim was already
shifted to hospital. The PW then came to the auto stand to
identify the driver of the offending vehicle where he met Sri
Madan Nath [PW-5] who told him that the auto rickshaw from
which the victim fell belonged to the accused petitioner and the
registration No. of the vehicle was TR-02-A-2954. The PW then
went to hospital where he met the injured victim. The victim
told him that the accused driver forcefully lifted her in his
vehicle while she was going to her school who touched her
breast and belly inside his vehicle. When she found that the
vehicle was not taking any halt even after crossing her school,
she jumped from the vehicle.
In cross examination it was suggested to the PW
that he concocted the story in collusion with Sri Madan Nath.
The PW denied the suggestion.
Crl. Rev. P. 64 of 2016
12. Sri Mukul Debnath [PW-3] was a teacher of the
school where the victim used to study in Class VI. On
02.09.2013 at around 11 am the victim appeared in the school
with injuries on her hand, knees and legs. She was then crying.
She told to her teachers where the PW was also present that
when she was coming to school in the morning, driver of an
auto rickshaw forcefully picked her up in his vehicle and got her
seated beside him. When the auto rickshaw was crossing her
school she asked the driver to stop. Despite her request the
driver did not stop his vehicle. He then jumped from the vehicle
and received the injuries.
In his cross examination, the PW stated that he is
also a neighbour of the victim. The PW denied the suggestion of
the accused that he deposed falsely.
13. Sri Animesh Debnath [PW-4] is the scribe of the
ejahar (Exbt.1/1). According to the PW he wrote the ejahar
after the informant stated the facts of the case to him.
In cross examination, the PW stated that the victim
was in hospital when her father got the FIR written by him. The
PW did not speak to the victim before writing the FIR.
14. Sri Madan Lal Debnath [PW-5] is an auto driver by
occupation. He is also the maternal uncle of the victim.
According to him when the accused was driving his vehicle
bearing registration No. TR-02-A-2954 with the victim in his
Crl. Rev. P. 64 of 2016
vehicle, the PW was also driving his auto rickshaw from the
opposite direction. At that time the PW was carrying passengers
in his vehicle. The vehicle of the accused had no other
passenger except the victim who was seen sitting on the front
seat beside the driver. At around 11/11.30 am he received a
telephone call from one Smt. Dipika Rani Nath who told the PW
that the accused lifted the victim in his auto rickshaw from her
way to school. The PW was also informed by the caller that she
saw the victim sitting on the front seat of the vehicle beside the
driver and the driver touched her body. The PW immediately
reached the spot and saw the victim with the injuries. The PW
then brought the victim to the hospital in his vehicle.
The PW was put to incisive cross examination. In
his cross examination, the PW stated that one Rinku Nath was
the owner of the offending auto rickshaw. The PW denied that
he conspired with said Rinku Nath and falsely implicated the
accused in the alleged offence. It was suggested to the PW that
the victim jumped from the vehicle because she wanted to flee
away without paying the fare which was denied by the PW.
15. Sri Dipak Nath [PW-6] was an employee posted in
the CT scan section of Dharmanagar hospital. He was also the
maternal uncle of the victim. On 02.09.2013 the victim was
brought to the hospital in injured condition who told him that
when she was going to her school in the morning the accused
Crl. Rev. P. 64 of 2016
forcefully lifted him into his vehicle and keeping one of his
hands on the steering he was screening his body with his
another hand.
In his cross examination the PW stated that police
arrested the petitioner on the date of occurrence. The PW
denied the suggestion of the accused that he gave false
evidence against him.
16. PW-7 is the victim who supported the prosecution
case. According to her the incident took place on 02.09.2013
when she was going to school from her house. All on a sudden
an auto rickshaw stopped near her and the driver offered her a
lift for going to school. She refused to board the vehicle and
told the driver that her school was nearby and she was able to
go on foot. The driver kept pursuing her for boarding his
vehicle. She again refused the offer. The driver then forcibly
picked her up and got her seated beside him. There was no
other passenger in the vehicle at that time. Inside the vehicle
one of his hands was on the steering and he placed the other
hand on her chest. When the driver was crossing her school she
asked him to stop the vehicle. Despite her request the driver
did not stop the vehicle. Immediately she jumped from the
vehicle and received injuries. After the incident she came to
school and told madam Rita Nath [PW-10] about the
Crl. Rev. P. 64 of 2016
occurrence. Later on, her statement was recorded by a
Magistrate.
In her cross examination she stated that while she
was sitting in the vehicle of the accused she saw her maternal
uncle Sri Madanlal Debnath [PW-5] driving his auto rickshaw on
the same road. According to her, she returned home from
hospital from where she was taken to police station and the FIR
was lodged by her father. She came to know the name of the
accused from Sri Madanlal Debnath and her father Sri
Sudhanya Nath [PW-1]. She further stated that she saw the
accused in the lock up of the police station on the very day of
occurrence.
17. Dr. Sandipak Roy [PW-8] attended the victim after
she was brought to hospital after the occurrence. The PW told
that the victim sustained abrasion on her right knee and right
elbow which according to the PW was caused due to friction for
jumping from the auto rickshaw. He identified the injury report
as Exbt.4.
In his cross examination it was suggested to the PW
that he manipulated the injury report in coalition with the
investigating officer which was denied by the PW.
18. Sri Ashish Kr. Das [PW-9] is the investigating officer
of the case. According to him the charges against the accused
Crl. Rev. P. 64 of 2016
petitioner was established during investigation and therefore he
submitted charge sheet against him.
19. Smt. Rita Nath [PW-10] was posted as an Assistant
teacher at the school where the victim used to study in Class VI
at the time of occurrence. On 02.09.2013 i.e. the date of
occurrence, the victim came to the school with multiple
bleeding injuries on her hand and legs. When the PW asked her
about the reason of her injuries she told her that she jumped
from a running auto rickshaw. The victim also told the PW that
the accused had forcibly lifted her in his auto rickshaw despite
her refusal and then he started touching different parts of her
body with one of his hands getting her seated in the vehicle
beside him. The victim jumped from the vehicle when the driver
declined to stop the vehicle even after the vehicle crossed her
school. The PW found the victim very frightened and she was
crying. According to the PW, Sri Mukul Debnath and Sri
Karnamani Debnath, teachers of the school brought the victim
to hospital.
20. On appreciation of evidence, the learned trial court
held that the accused lifted the victim into his vehicle against
her consent and the consent of her legal guardian and despite
the request of the victim he did not drop her in front of her
school and as such an offence punishable under section 363 IPC
Crl. Rev. P. 64 of 2016
was established against him. The relevant paragraph of the trial
court's judgment is as under:
"54. The reason is that even though the victim girl
was taken to the auto rickshaw of the accused person at the
relevant time on her way to school without any consent of her
legal guardian that could not caste with any guilty intention of
the accused person in case he could drop her in front of her
school. But the moment the accused driver started to proceed
with his running auto rickshaw taking the victim girl crossing
her school and without dropping her there the guilty intention
of accused person to kidnap her has been constituted and as
such there was no consent of the legal guardian or the school
teacher of the victim girl to carry the victim towards Kadamtala
crossing her school. Accused person was supposed to drop the
victim girl at her school and with this assumption the victim girl
was lifted in the auto rickshaw. Thus when accused person
crossed her school and also did not stop it in spite of her saying
the intention of accused person to kidnap her or to do any other
wrongful act has been constituted. Therefore, in my considered
opinion accused person has been found guilty in committing the
offence of kidnapping the victim girl on the relevant date, time
and place which is punishable under section 363 of IPC. Since
the offence under section 366 IPC. is an aggravated form of
offence of kidnapping, accused can be convicted under minor
offence under section 363 of IPC. in view of section 222 of
Cr.P.C.
Hence point no. (ii) is decided in the affirmative in
favour of prosecution while point no. (iii) is decided in the
negative.
Crl. Rev. P. 64 of 2016
Point no. (iv)
Here I have to examine whether accused person
has outraged the modesty of the victim girl on the relevant
date, time and place of occurrence."
21. The learned trial court also held that the accused
got the victim seated beside him though there was no other
passenger in the vehicle and such conduct of him manifested
his guilty intention. The learned trial court, therefore, believed
the statement of the victim and convicted and sentenced the
accused under section 354 IPC. Relevant paragraph 56 of the
judgment is as under:
"It is also evident that accused person was
unknown to the victim girl and it is quite improbable that she
would falsely implicate the accused person. Here the
circumstances itself reflect that accused person had intended to
outrage the modesty of victim girl and in order to materialize
such intention he voluntarily asked the victim girl to sit in his
auto rickshaw repeatedly in spite of the saying of victim to go
to her school by walk. Thereafter accused sat the victim in the
front seat of the auto rickshaw just beside him though the front
seat of auto rickshaw is meant for only its driver. The back seat
of the auto rickshaw was evidently vacant but he did not ask
the victim to seat in that passenger's seat. This relevant fact
and conduct of accused driver clearly points to his guilty mind
that he would outrage the modesty of victim girl by touching
her body particularly her private parts like breast. It is also
revealed in evidence that the accused also used criminal force
upon victim as he held up her body by his one hand."
Crl. Rev. P. 64 of 2016
22. The learned Sessions Judge while affirming the
conviction and sentence of the accused vide paragraph 20 of its
judgment held as follows:
"Victim had got no enmity with the accused. So,
victim has no cause to depose falsely against the accused-
appellant affecting her own chastity. Ld. Trial court has passed
a reasoned order. Of course, Ld. Trial court only convicted the
appellant under sections 363 and 354 of IPC. It is clear from
the evidence of the prosecution that the appellant being driver
of the involved auto bearing no. TR 02A 2954 did not drop her
at the school and outraged the modesty of the victim while she
was on board and without dropping her in front of school, he
kidnapped the victim and proceeded towards another
destination of course with bad intention but failed to commit
further offence as the victim due jumped down from the auto
rickshaw. It is clear that due to jumping down from the auto
the victim sustained injuries and somehow she was survived. In
my considered opinion conviction of the appellant by the Ld.
Trial court under sections 363 and 354 of IPC and passing
sentence of RI for 1 year and fine of Rs.5,000/- for the offence
u/s. 363 of IPC with further sentence of RI for 1 year and fine
of Rs.5,000/- for the offence u/s. 354 of IPC with direction that
both the sentences shall run consecutively is in the lower side.
Considering the gravity of the offences and seriousness of the
sincident, I think it is a very poor penalty and in adequate
penalty. But since there was no counter appeal on behalf of the
State or on behalf of the informant or the victim this court
should not interfere in the findings of Ld. Trial court."
23. Learned Sessions Judge seems to have upheld the
conviction of the petitioner under section 363 IPC on the
Crl. Rev. P. 64 of 2016
ground that the victim boarded his vehicle for going to school
but the petitioner proceeded towards another destination
without dropping her in front of her school which apparently
manifested his bad intention of taking away the minor girl out
of the keeping of her parents and constituted kidnapping within
the meaning of section 361 IPC. At this stage it would be
apposite to reproduce section 361 IPC which is as under:
"361. Kidnapping from lawful guardianship.--
Whoever takes or entices any minor under [sixteen] years of
age if a male, or under [eighteen] years of age if a female, or
any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship."
24. From a plain reading of section 361 IPC, it appears
that application of force or enticement is an essential element
of kidnapping. In the instant case it has not been proved that
the petitioner either forced the victim or in any manner enticed
her to board his vehicle. The fact which has been established by
evidence is that when the victim was going to her school, the
petitioner met her on the way and offered her a lift in his
vehicle for going to school. Initially she disagreed but owing to
his constant persuasion the victim boarded his vehicle
reluctantly and sat beside him on the front seat of the vehicle.
Having realized that the petitioner did not stop his vehicle
inspite of crossing her school, the frightened victim jumped
from the vehicle. There is no evidence that the petitioner was
Crl. Rev. P. 64 of 2016
taking her to any unknown destination. Further there is no
evidence that the petitioner in any manner terrorized or
prevented her from shouting with a view to accomplish his
mission. Even there is no evidence of any kind of enticement.
Therefore, the conviction and sentence of the petitioner under
section 363 IPC is not proper. As a result, his conviction and
sentence under section 363 IPC is set aside.
25. In so far as the conviction and sentence of the
petitioner under section 354 IPC is concerned, it is evident that
the circumstances available on record clearly indicate to the
guilt of the accused. There is no reason to disbelieve the victim
who categorically stated that the petitioner persuaded her to
board his vehicle and sit beside him even though the back seat
was entirely vacant and there was no other passenger in his
vehicle. The victims' evidence that the petitioner laid his hand
on her chest while she was seated in his vehicle cannot also be
disbelieved particularly when there is no proof of any kind of
animosity of her towards the accused. The petitioner was a 12
years' old girl and quite mature to distinguish between good
touch and bad touch. Evidently, the victim did not want a lift in
the vehicle of the petitioner for going to her school. Rather she
was very much reluctant to board his vehicle when she saw that
there was no other passenger in the vehicle. She even told the
petitioner that her school was nearby and she would walk to
Crl. Rev. P. 64 of 2016
her school. But, the adamant petitioner got her seated in his
vehicle and that too on the front seat beside him even though
there is no other passenger in the vehicle and all seats were
vacant. Ultimately, the frightened victim jumped from the
vehicle when the petitioner declined to stop his vehicle even
after crossing her school. The whole circumstances made the
courts below believe the statement of the victim that the
petitioner outraged her modesty inside his vehicle. Having
considered the evidence on record and the circumstances of the
case, I find no reason to interfere with the findings of the
learned Sessions Judge with regard to the conviction and
sentence of the petitioner under section 354 IPC. The petitioner
cannot derive any benefit from the decision of this High Court in
Santosh Chandra Shil Vs. State of Tripura, (2017) 2 TLR 80
relied upon by learned counsel of the petitioner with regard to
identification of the accused because the facts are totally
distinguishable. Therefore, the conviction and sentence of the
petitioner under section 354 IPC is upheld.
26. Resultantly, the revision stands partly allowed.
27. The petitioner who is on bail shall surrender before
the trial court to suffer the sentence within a period of 2 (two)
months failing which the learned trial judge shall take steps in
accordance with law to make him suffer the sentence.
Crl. Rev. P. 64 of 2016
Send back the LC record along with a copy of the
judgment.
JUDGE
Rudradeep
Crl. Rev. P. 64 of 2016
