Tripura High Court

Sri Sudhir Chandra Majumder @ ... vs The State Of Tripura on 26 November, 2021

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HIGH COURT OF TRIPURA
AGARTALA

Crl. Rev. P. No. 04 of 2020

Sri Sudhir Chandra Majumder @ Sudhir Majumder,
Son of Sri Late Hemanta Majumder, Vill-Shibnagar, P.S. Melaghar,
Dist.-Sepahijala, Tripura

----- Petitioner(s)
Versus

The State of Tripura
-----Respondent(s)

For Petitioner(s) : Mr. S. Sarkar, Sr. Adv.
Ms. P. Chakraborty, Adv.
Ms. M. Pal, Adv.

For Respondent(s) : Mr. S. Debnath, Addl. P.P.

Date of Hearing : 24th September, 2021.
Date of Pronouncement : 26th November, 2021.

Whether fit for reporting : NO

B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER

This criminal revision petition is directed against the

judgment and order dated 07.01.2020 passed by the Sessions Judge,

Sepahijala Judicial District, Sonamura in Criminal Appeal No. 06 of

2019. Petitioner was convicted under section 448 and 354 IPC and he

was sentenced to RI for one year and fine of Rs.1,000/- with default

stipulation for offence punishable under section 448 IPC and RI for five

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years and fine of Rs.10,000/- with default stipulation for offence

punishable under section 354 IPC by the Chief Judicial Magistrate,

Sepahijala Judicial District in case No. PRC(WP) 07 of 2015. In appeal,

the Sessions Judge affirmed the conviction and sentence of the

petitioner under section 448 IPC. But while maintaining his conviction

under section 354 IPC, the appellate court reduced his sentence to RI

for three years and fine of Rs.5,000/- with default stipulation. Aggrieved

petitioner has therefore filed this criminal revision petition under section

397 read with section 401 Cr.P.C.

[2] The genesis of the prosecution case is rooted in the FIR

lodged by the victim (name withheld to hide her identity) on

08.01.2015 with the officer in charge of Melaghar police station

alleging, inter alia, that 55 years old accused Sudhir Chandra Majumder

entered into her home at about 1 O'clock in the afternoon when she was

doing domestic works at home. The accused approached her and asked

her to accompany him to another room of the house. Immediately

thereafter, he caught hold of her and tried to outrage her modesty. The

victim raised cry. Following her cry, her husband, son and some of the

neighbours appeared and rescued her. They also caught the accused

and tied him in their house. Thereafter, the Vice Chairman of the village

panchayet namely, Subal Debnath came and snatched away the

accused.

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[3] Melaghar PS case No. 02 of 2015 under sections 448 and

354 IPC was registered on her complaint and the case was taken up for

investigation.

[4] After investigation, police charge sheeted the accused for

offence punishable under sections 448 and 354B IPC. Trial commenced

in the court of the Sub Divisional Judicial Magistrate at Sonamura with

the framing of following charges against the accused:

"First:-

That, on 08.01.2015 at about 1300 hrs, you the above
named accused person, committed criminal-trespass by
entering into the house of the complainant in the
possession of the complainant with the intention to
commit an offence and that you thereby committed an
offence punishable U/S.448 of IPC and within my
cognizance.

Secondly:-

That, you the above named accused person, on or about
same date and time, by using criminal force outraged
modesty of the complainant by embracing her and
touching her breast and that you thereby committed an
offence punishable U/S.354 of IPC and within my
cognizance.

And, I do hereby direct that you to be tried on the said
charge by the said court."

Accused pleaded not guilty and claimed trial.

[5] In the course of trial, eight witnesses including the victim,

her husband, sister in law and some of her neighbours were examined

on behalf of the prosecution. After the prosecution evidence was closed,

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accused was examined under section 313 Cr.P.C During his examination

under section 313 Cr.P.C, accused stated that following the instruction

of the doctor of the victim he went to her house to record her blood

pressure. The victim complained that she had a tumor in her lower

abdomen. When the accused placed his hand on her lower abdomen to

see as to whether there was any sign of tumor, the victim raised cry.

Subsequently, she lodged a false FIR against him. The accused further

stated that when he was measuring her blood pressure, her husband

and son were present there. He, however, declined to adduce any

evidence on his defence.

[6] At the end of the trial, the trial court delivered the

judgment by convicting the accused under section 448 and 354 IPC and

sentencing him for the said offence. Relevant extract of trial court's

judgment is as under:

"[66] Thus basing on the findings drawn up above and
keeping in view the proposition of law cited, it can be
summed up that it is proved in the evidence beyond
reasonable shadow of doubt that on the relevant date and
time accused person committed house trespass by
entering into the hut of victim with intent to outrage her
modesty. It is also proved beyond reasonable doubt that
accused person used criminal force upon victim by
embracing her body and removing her saree as well as by
doing scuffling with her on the wooden cot and thereby he
outraged her modesty. Thus, the ingredients of the
offences u/s 448 & 354 of IPC have been proved in the
evidence beyond reasonable doubt. Consequently,
accused Sudhir Majumder is found guilty in committing
the offences u/s 448 & 354 of IPC and he is liable to be
convicted.

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Accordingly, Points No. I, II & III are decided in the
affirmative in favour of prosecution.

[67] In the result, it is hereby held that prosecution has
been able to prove the charges u/s 448 & 354 of IPC as
leveled against accused Sudhir Majumder @ Sudhir Ch.
Majumder beyond reasonable shadow of doubt.
Accordingly, accused Sudhir Majumder @ Sudhir Ch.
Majumder is hereby convicted u/s 448 & 354 of IPC for
having found him guilty.

Now let us discuss whether convict person can be
extended the benefit of probation as per Section 360
Cr.P.C.

[68] Having regard to the nature of offence under section
448 & 354 of IPC being serious and a crime against
woman touching her chastity and modesty, as well as the
perverted character of accused person in committing such
crime and its adverse impact on the mind of victim and
her family members in my considered view, it is not
expedient to extend the benefit of probation to the
accused person either under section 3 & 4 of Probation of
Offenders Act or under section 360 of the Cr.P.C as it will
not send good message to the society and victim of the
crime. So, I propose to award appropriate sentence to
convicted person in accordance with law.

[69] Heard convict Sudhir Majumder on the point of
sentence while he claimed to be innocent again and
submitted that he is 65 years old having his old wife in
bed ridden condition and his 94 years old aged mother in
the family and they being dependent on the only income
of his medicine shop, they would suffer a lot if any harsh
punishment is given. So he begged mercy of the Court in
the matter of sentence.

..........................................................................................................

[73] Therefore, in the light of above discussion and reasons, convict Sudhir Majumder @ Sudhir Ch. Majumder is hereby sentenced under section 448 I.P.C. to suffer rigorous imprisonment for a term of 1(one) year and to pay fine of Rs.1000/-(one thousand

Crl. Rev. P. No. 04 of 2020 Page - 6 of 16

only) and in-default to payment of fine he is to suffer RI for two (02) months.

[74] Convict Sudhir Majumder @ Sudhir Ch. Majumder is also sentenced under section 354 I.P.C to suffer rigorous imprisonment for a term of 5(five) years and to pay fine of Rs.10,000/-(ten thousand only) and in-default to payment of fine he is to suffer RI for six (06) months. Both the substantive sentences of imprisonment shall run concurrently."

[7] Aggrieved by and dissatisfied with the judgment of the

trial court, convict petitioner filed an appeal before the Sessions Judge,

Sepahijala Judicial District at Sonamura. The learned Sessions Judge by

the impugned judgment affirmed the conviction of the appellant

petitioner and reduced his sentence under section 354 IPC viewing as

under:

"18. In the case at hand from the evidence on record it appears that on the alleged date the convict appellant to fulfill his illegal desire illegally came to the house of the victim caught hold her body on the wooden cot and thereafter intended to outrage her modesty with the knowledge that is act would outrage her modesty and embraced the body of the victim pulling her on the wooden cot on that relevant point of time.

In course of hearing of argument Ld. Counsel for the appellant referred a good number of citations as stated above and I have gone through the principles of all the said citations but I do not find any scope to apply the principles of any of the citations in this as the fact of this case are distinguishable with those citations. Thus, after hearing elaborate argument of both sides at length and also after going though the judgment of the Ld. Court below and also after going through the evidence on record it appears to me that Ld. Court below has rightly delivered the judgment against the convict-appellant in

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this case and I do not find any infirmity in the judgment of the Ld. Court below.

It is to be mentioned here that the appellant in course of his examination under Section 313 of Cr.P.C took the plea that he has got one shop for selling medicines at Shibnagar and since from the year 1977 he was dealing in such business and once Chandan Paul used to sit in his ship as Doctor and on the alleged day as per advise of Doctor he went to the residence of the victim for medical check up i.e. for measuring her blood pressure when her husband and son were present and after measuring pressure when he touched the lower abdomen that time she raised cry and ultimately, he was falsely implicated in this case. In this regard the appellant by the trend of cross-examination could not raise any circumstance to believe his statement nor adduced any oral evidence on record to substantiate his claim no adduced said Dr. Chandan Paul to support his contention. So, no reliance can b placed upon the submission of Ld. Counsel for the appellant. Thus, in my considered view there is no merit in this appeal.

19. Now with regard to the sentence imposed by the Ld. Court below it appears to me that Ld. Court below sentenced the appellant without extending the benefit of provision since the alleged offence was a crime against woman and sentenced the convict under Section 448 of IPC to suffer RI for one year and to pay a fine of Rs.1,000/- I.d to suffer further RI for 2 months and also sentenced the convict-appellant to suffer RI for a period of 5 years and to pay a fine of Rs.10,000/- I.d to suffer further RI for 6 months which in my considered view is too harsh for the appellant and as such considering the nature and gravity of the offence I am of the considered view to modify the sentence under Section 354 of IPC to suffer RI for a period of 3 years and to pay a fine of Rs.5,000/- I.d. to suffer further RI for 3 months, maintaining the other sentence and both the sentences shall run concurrently.

20. In the result the appeal filed by the convict-appellant is hereby dismissed on contest. The judgment passed by the Ld. Court is hereby upheld accordingly.

Crl. Rev. P. No. 04 of 2020 Page - 8 of 16

21. The convict-appellant Sudhir Majumder be sentenced under Section 448 of IPC to suffer RI for one year and to pay a fine of Rs.1,000/- I.d to suffer further RI for 2 months and the appellant is further sentenced under Section 354 of IPC to suffer RI for a period of 3 years and to pay a fine of Rs.5,000/- I.d to suffer further RI for 3 months and both the sentences shall run concurrently."

[8] The petitioner assailed the impugned judgment by means

of filing this criminal revision petition before this court mainly on the

following grounds:

(i) Vital witnesses have been withheld by the prosecution for

which the trial court as well as the appellate court should have drawn

adverse inference against the prosecution.

(ii) Wearing apparels of the victim were not seized by the

investigating agency which casts doubt over the prosecution case.

(iii) The trial court as well as the appellate court failed to

appreciate that the case was lodged due to the inimical relationship

between the family of the prosecutrix and the accused.

(iv) The trial court did not take into consideration the

infirmities in the prosecution evidence on material points.

[9] In the course of arguments Mr. S. Sarkar, learned senior

advocate appearing along with Ms. P. Chakraborty and Ms. M. Pal,

advocates contends that the prosecution has presented an improbable

story. Counsel contends that admittedly the accused came to measure

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the blood pressure of the victim to her house under the instruction of

her doctor. Husband and son of the victim were also present when the

accused was measuring her blood pressure. In such circumstances,

outraging the modesty of the victim by the accused is quite improbable.

Counsel submits that as per the prosecution story, immediately after

the occurrence, victim narrated the entire facts to one Subal Debnath

and Pranballab Pal but none of these witnesses have been examined by

the prosecution for which the trial court should have drawn adverse

inference against the prosecution. Counsel submits that there are

serious infirmities on material points in the evidence of the prosecution

witnesses and the trial court did not consider and appreciate these

infirmities and inconsistencies. According to learned counsel, conviction

and sentence based on such evidence cannot be upheld. Counsel,

therefore, urges the court to set aside the impugned judgment of

conviction and sentence.

[10] Mr. S. Debnath, learned Addl. P.P. representing the State

respondent on the other hand submits that the judgment of the trial

court and that of the appellate court are based on cogent evidence

which call for no interference in appeal. Learned Addl. P.P., therefore,

urges the court to dismiss the criminal revision petition.

[11] The revisional power of the High Court exercisable under

sections 397 and 401 Cr.P.C has been discussed by the Apex Court in a

catena of decisions. In State of Maharashtra Vs. Jagmohan Singh

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Kuldip Singh Anand & Ors. with Satish Kaur Sahni Vs. Jagmohan

Singh Kuldip Singh Anand & Ors. reported in (2004) 7 SCC 659,

the Hon'ble Apex Court has held as under:

"22. The revisional Court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be,

"for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court."

It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand vs. Delhi Admn. (AIR 1975 SC 1960) in which it is observed thus: (SCC p.651, para 5)

"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned

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Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

[12] In the course of arguments, counsel appearing for the

parties had taken this court to the prosecution witnesses.

[13] PW-1 is the victim who stated at the trial that at the

material time she was doing domestic work at her home when accused

Sudhir Majumder came to there and called her to come to another room

of her house. She followed her without any kind of protest. He wanted

to know whether she was taking the medicines and how did she feel

after taking those medicines. In reply, she said to the accused that she

could not say anything. At that time the accused made her lie on a

wooden cot and embraced her after removing her saree. She cried for

help and following her cry her husband and son appeared and rescued

her. Thereafter, they caught the accused. She further stated in her

examination in chief that her husband was working in the kitchen at

that time and her son was reading in his room. To the query of the

court, the witness stated that immediately after the incident Subal

Debnath and Pranballab Pal of her village met her. They were allowed to

take the accused away on their assurance that they would look into the

matter. Victim did not lodge any FIR till evening. There being no

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response from said Subal Debnath and Pranballab Pal, she lodged FIR

against accused petitioner.

In her cross examination, she admitted that she was

under treatment of Dr. Chandan Pal who was running his private

chamber from the medical store of the accused. She also stated that

she was taking medicines prescribed by Dr. Chandan Pal.

[14] PW-2 is the husband of the victim who stated that at the

time of occurrence he was making sweets in the kitchen of his house

and his 20 years' old son was studying in another room. He suddenly

heard cry of his wife and rushed to her rescue along with his son. He

saw that the accused was scuffling with his wife on a wooden cot.

Seeing them, the accused stood up and the saree of his wife was found

removed from her body. Immediately, thereafter, Subal Debnath and

Pranballab Pal came to their house and assured that they would help in

an amicable settlement. Since, there was no response from said Subal

Debnath who was the Vice Chairman of the village panchayet and

Pranballab Pal, a panchayet member, the victim lodged FIR.

The PW also admitted in his cross examination that his

wife was receiving treatment from Dr. Chandan Pal.

[15] PW-3 is the sister in law of the victim who lived in the

adjacent house at the time of occurrence. She stated that following the

cry of the victim she had gone to her house and found the accused in

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her house. She noticed the victim in distressed condition who told her

that the accused outraged her modesty.

[16] PW-4, a neighbour of the victim also met the victim after

the occurrence. He saw that the accused was tied up inside the house of

the victim. The victim told that the accused wanted to outrage her

modesty. Similar evidence was given by PW-5, neighbour of the victim.

[17] PW-6, another neighbour of the victim also met the victim

immediately after the occurrence who told him that she cried out for

help when the accused touched her lower abdomen. The PW noticed a

stethoscope lying on the floor of the house and a sphygmomanometer

(instrument for measuring blood pressure) lying on the wooden cot of

the victim. To the query of the court, the PW stated that accused owned

a medical shop from whom he and his neighbours used to take medicine

for ordinary ailments.

[18] PW-7, a neighbour of the victim also stated that he came

to know from the victim that she cried out for help when the accused

touched her lower abdomen.

[19] PW-8 is the investigating officer who submitted the

charge sheet on the basis of the statements of the witnesses of the

case. In his examination in chief, the PW stated that since the materials

collected during investigation made out a case against the accused

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under sections 448 and 354 IPC, he submitted charge sheet against him

for committing such offence.

In cross examination, the PW denied that his investigation

was perfunctory.

[20] Admittedly, the accused had a medicine shop in the

village of the victim and the victim was under treatment of Dr. Chandan

Pal who used to run his private chamber from the medicine store of the

accused. Therefore, the accused was not a stranger to the victim. It is

also admitted that when the accused had gone to the house of the

victim at the material time, his husband and 20 years' old son were

present in the house. From the statement of the victim it also appears

that when the accused instructed the victim to come to another room

from the place where she was doing her domestic works, the victim

obeyed his instruction without any kind of protest. PW-6 has

categorically stated that a stethoscope was lying on the floor and

sphygmomanometer (instrument for measuring blood pressure) was

lying on a wooden cot. Therefore, the defence case made out by the

accused in his cross examination as well as in his examination under

section 313 Cr.P.C that he actually went to record blood pressure of the

victim under the instruction of Dr. Chandan Pal gains ground. It is clear

that the victim as well as her husband and son suppressed these

material facts in their evidence. The prosecution story that the accused

who was about 60 years of age outraged the modesty of the victim in

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her own house in broad day light and that too in the presence of her

husband and 20 years old son in the house appears to be quite

improbable. On the other hand, the case of the accused that he went

there to measure the blood pressure of the victim stands substantiated

by the evidence available on record.

[21] The Apex Court in S.P.S. Rathore Vs. C.B.I. & Anr.

reported in 2017 CRI. L. J. 537 laid down the essential ingredients of

the offence punishable under section 354 IPC and held that requisite

culpable intention of the accused has to be gathered from the sequence

of the events of the case. Observation of the court in the said judgment

is as under:

"22. In order to constitute the offence under Section 354 of the IPC, mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC, are as under: