Sri Sanjay Das @ Sanju vs The State Of Tripura
2021 Latest Caselaw 1167 Tri

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                              HIGH COURT OF TRIPURA
                                    AGARTALA

                              Crl. Rev. P. No. 65 of 2016

  Sri Sanjay Das @ Sanju,
  Son of Lt. Anil Das, Resident of West Noabadi, Amtali, P.S.
  Bodhjungnagar, West Tripura

                                                                 ----- Petitioner(s)
                                       Versus


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

For Petitioner(s) : Mr. Kohinoor N. Bhattacharya, Adv.

Mr. D. Debbarma, Adv.

  For Respondent(s)                    :    Mr. R. Datta, P.P.

  Date of Hearing                      :    17th 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 filed under section 397 read

with section 401 Cr.P.C has been directed against the judgment and

order dated 26.06.2015 passed by the Additional Sessions Judge (Court

No.2), West Tripura, Agartala in Criminal Appeal No. 42 of 2014

affirming the conviction and sentence of the petitioner under section

354 IPC passed by the Judicial Magistrate First Class (Court No.4),

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Agartala, West Tripura on 31.03.2014 in case No. PRC 1137 of 2011

whereby the learned Judicial Magistrate convicted the petitioner namely

Sanjay Das @ Sanju under section 354 IPC and sentenced him to RI for

six months with a fine of Rs.500/- with default stipulation.

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

lodged by the mother of the victim with the officer in charge of

Bodhjungnagar police station on 29.10.2011 wherein she alleged, inter

alia, that on 28.10.2011 at about 04.30 pm her 17 years' old daughter

and one of her grand-daughter aged 10 years were watching T.V. in

their bedroom. The accused who used to live in the adjoining house

came to there and sat on the bed of her daughter. All on a sudden he

touched the breast and belly of her daughter and thereby outraged her

modesty. When her daughter tried to cry out for help, the accused

pressed her mouth to prevent her from shouting. The accused also

terrorized the grand-daughter of the informant. However, they

managed to run out to the house of Smt. Rahima Khatun and Smt.

Hajara Khatun in their neighbourhood and told everything to them.

Accused also fled away. When the informant returned home from work

in the evening, her daughter told her everything. Initially, she took up

the matter with the local panchayet and pursuant to the advice of the

panchayet, she reported the matter to police.

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[3] On the basis of her FIR, Bodhjungnagar PS case No.57 of

2011 under sections 447, 354 and 323 IPC was registered and the case

was taken up for investigation.

[4] During investigation of the case, the investigating officer

visited the place of occurrence and examined the material witnesses of

the case. He had also drawn up a hand sketch map of the place of

occurrence indicating the material locations therein along with a

separate index. Victim was subjected to medical examination and at the

end of investigation, he submitted charge sheet No.41 of 2011 dated

31.10.2011 against the accused for having committed offence

punishable under sections 447, 354 and 323 IPC.

[5] Learned Chief Judicial Magistrate received the charge

sheet and after taking cognizance of offence made over the case to the

court of the learned Judicial Magistrate First Class (Court No.4),

Agartala, West Tripura for trial.

[6] The learned Judicial Magistrate read over and explained

to the accused the substance of accusation in terms of section 251

Cr.P.C. Accused pleaded not guilty and desired to stand the trial.

[7] In the course of trial, prosecution examined the mother of

the victim as PW-1. The victim was examined as PW-2. Four of their

neighbours were examined as PW-3, PW-4, PW-5 and PW-6. Apart from

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adducing the oral testimony of these witnesses, prosecution introduced

single piece of documentary evidence which was marked and exhibited

as Exbt.1.

[8] After the prosecution evidence was closed, accused was

examined under section 313 Cr.P.C. In reply, he stated that he was

innocent and the charges were foisted on him. He declined to adduce

any evidence on his defence.

[9] On appreciation of evidence, the trial court held the

accused guilty of offence punishable under section 354 IPC and

sentenced him to RI for six months and a fine of Rs.500 with default

stipulation.

[10] Convict preferred an appeal against the judgment of the

trial court in the court of the Additional Sessions Judge (Court No.2),

West Tripura, Agartala. The learned appellate court by the impugned

judgment affirmed the judgment and order of conviction and sentence

passed by the trial court and held as under:

"16. In the judgment of the Trial Court it was mentioned that first of all ld. Trial Court had gone through the section 354 of IPC, as it was the only non compoundable section and the remaining two sections are compoundable in nature. The question of compoundable and non-

compoundable came as because during trial the informant at a later stage deposed that she is not interested in this case as she has settled the matter and with those words ld. Trial Court had been come to the findings whether the

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offence u/s 447 and 323 of IPC is proved in this case or not. Perhaps ld. Trial Court was under an impression that offence u/s 447 of IPC was compounded by the informant because it was the house of the informant. The offence of 323 of IPC is incorporated with the section 354 of IPC and probably ld. Trial court also did not discuss that matter.

17. On perusal of the evidence of the informant given subsequently it cannot be denied that the intention of the informant is to settle up the dispute. So, in that regard though there is no findings regarding the offence u/s 447 of IPC I also considered that the accused should be convicted u/s 447 of IPC even in the later stage also the informant had settled up the matter. But it is proved beyond all shadow of doubt that the victim did not settle up the case or compromise within the meaning of section 320(2) of Cr.P.C. So fas as offence u/s 354 of IPC is concerned.

18. So, I find to ground to interfere into the findings of conviction of the appellant u/s 354 of IPC.

19. Nowadays in the society offence against women has become increased, particularly in the village areas. The desperate nature of young boys for such offence should be controlled by some deterrent measures. So, in such an offence I am also of the opinion that it will not be a fit case to give the benefit of probation of offenders Act to the convict rather it is the duty of every court not to encourage this offence but to attract probation of offenders Act particularly in case against women section of the society. So, I refrained from giving the benefit of offenders Act in this case.

20. As such I find no ground to interfere in the order of sentence passed by ld. Trial Court.

21. Accordingly, I hereby confirm the order of ld. Trial Court convicting the appellant u/s 354 of IPC and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- in default to suffer simple imprisonment for ten days.

22. Accordingly, the appeal stands dismissed."

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

appellate court, convict petitioner has approached this court by filing

this criminal revision petition.

[12] Heard Mr. Kohinoor N. Bhattacharya, learned advocate

appearing along with Mr. D. Debbarma, advocate for the petitioner. Also

heard Mr. R. Datta, learned P.P representing the State respondent.

[13] It is submitted by Mr. Bhattacharya, counsel of the

petitioner that accused is a next door neighbour of the victim who had a

very friendly relation with the victim. He also had an easy access to the

house of the victim. Counsel submits that on the alleged date of

occurrence, accused went to the house of the victim and after having

talks with the victim and members of her family for a while he left their

house. Subsequently, mother of the victim having been instigated by

her daughter lodged a false case against him. Counsel submits that

later the mother of the victim realized her fault and again came to court

and in her re-examination on 11.02.2014 she categorically stated as

under:

"I have lodged a case against Sanjay alias Sanju. On 17.10.12 I have deposed in c/w this case. I am the informant of this case. Sanjay is my neighbour. We are living peacefully in the same area. I am not interested in further proceedings of this case. I have no grievances against him. Witness identifies the accused in the dock.

Victim (name withheld to hide her identity) is my daughter. She is now married and now living peacefully in

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her matrimonial home. Being her mother I want to say that we have no grievances against Sanjay. I want to close this case."

[14] Counsel submits that petition was also filed in the trial

court for according permission to compound the offence as the case

arose out of a misunderstanding and in the course of proceedings, the

parties amicably settled the matter at the intervention of the local

panchayet. Counsel submits that trial court has taken a very mechanical

view without appreciating the fact that the dispute arose out of

misunderstanding and the materials available on record did not disclose

any offence at all. Counsel contends that even the appellate court did

not consider the fact that the parties being next door neighbours of

each other amicably settled the matter and the mother of the victim

made a statement on oath in the witness box that she had no grievance

against the petitioner. Counsel submits that even if the evidence on

record is taken into consideration, no case of offence punishable under

section 354 IPC is mad out against the petitioner. Counsel, therefore,

urges the court to set aside the conviction and sentence of the

petitioner.

[15] Mr. R. Datta, learned P.P. contends that section 354 IPC

is a non compoundable offence and as such the learned trial court

rightly declined to accord permission to compound the offence. The trial

court after proper appreciation of evidence held the accused guilty and

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convicted him for offence punishable under section 354 IPC and

sentenced him to punishment for the said offence. Learned P.P. further

submits that the judgment of the trial court is based on sound

appreciation of evidence and therefore the appellate court rightly

declined to interfere with the judgment and order of conviction and

sentence of the petitioner. Learned P.P., therefore, urges the court to

dismiss the criminal revision petition.

[16] Among the witnesses examined, victim's mother who is

the first informant has been examined as PW-1. She stated that she

was away from home at the time when the occurrence took place. Her

daughter and grand-daughter were together in their bedroom. They

were watching T.V. At that time, the petitioner, an adjoining neighbour

came to their house and touched the face of her daughter. When she

raised protest, he "pressed on her chest" and wrapped her with a

blanket. Again he "pressed her chest" and left. Her daughter narrated

these facts to her when she returned home.

[17] The PW was put to an incisive cross examination. In her

cross examination, she could not say anything about what was written

in the ejahar. Her statement is as under:

"I am not much literate and hence I cannot say anything

about what is written in the ejahar."

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She was also asked whether there was electricity in her

house. She said that she was living on a government owned khas land

and no electric connection was provided to her house. She also stated

that she was aware that for operating T.V. electricity would be required.

She, however, denied the suggestion of the accused that there was no

T.V. in her house and her daughter and grand-daughter were not

watching T.V. at that time. The occurrence took place on 28.10.2011 at

04.30 pm. The matter was reported to police at 01.20 pm on the

following day though police station was nearby. She was asked in cross

examination as to why the delay occurred. She replied that she had

taken up the matter with the local panchayet before going to the police

station. As a result, delay occurred.

[18] PW-2 is the victim herself. In her examination in chief,

she stated that accused came and sat on her bed when she was

watching T.V. in her bedroom along with her niece. When the accused

touched her face, she protested. Then the accused put a blanket on her

and pressed on her chest and stomach which pained her. She pushed

him and ran out and informed the matter to her neighbours. Accused

also left.

In her cross examination, it was suggested to her that

she was not watching T.V. along with her niece as there was no

electricity in their house and T.V. could not be operated without

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electricity. She denied the suggestion. It was also suggested to her that

nothing happened to her and she gave false statement. She also denied

the suggestions.

[19] PW-3, an adjoining neighbour of the victim to whom the

victim narrated the occurrence immediately after the occurrence told

that the victim came to her crying and told her that accused touched

her face and "pressed her chest".

In her cross examination, the PW stated that the victim

and the accused were frequent visitor to each others' house and few

days before the incident, a dispute cropped up between the two families

regarding one jack fruit tree. Her statement is as under:

"Victim and her family visit Sanju's house and on the other hand Sanju also visits their house. Few days before the incident one dispute arose between Sanju and victim's family regarding one jackfruit tree."

[20] PW-4 is another adjoining neighbour of the victim whom

the victim met immediately after the occurrence and told her about the

occurrence. She also gave similar statement in her examination in chief.

In cross examination, she supported the statement of

PW-3 by stating as under:

"Victim and her family visit Sanju's house and on the other hand Sanju also visits their house. Few days before

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the incident one dispute arose between Sanju and victim's family regarding one jack fruit tree."

[21] PW-5 is the grand-daughter of the first informant who

was allegedly watching T.V. along with the victim in the dwelling house

of the victim when the occurrence took place. She also stated that the

accused came and touched the chest and belly of the victim. When the

victim raised cry, then the accused put a blanket on them and left.

[22] PW-6, the father of the grand-daughter of the informant

also supported the prosecution case by saying that he heard about the

occurrence from his daughter. No other witness has been examined in

this case.

[23] PW-1 was called for re-examination when she asserted as

under:

"I have lodged a case against Sanjay alias Sanju. On 17.10.12 I have deposed in c/w this case. I am the informant of this case. Sanjay is my neighbour. We are living peacefully in the same area. I am not interested in further proceedings of this case. I have no grievances against him. Witness identifies the accused in the dock. Victim (name withheld to hide her identity) is my daughter. She is now married and now living peacefully in her matrimonial home. Being her mother I want to say that we have no grievances against Sanjay. I want to close this case."

[24] As discussed, the trial court as well as the appellate court

did not accept the compromise arrived at between the parties and

declined to accord permission for compounding the offence on the

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ground that when the offence took place it was non compoundable

offence in terms of section 320 Cr.P.C.

[25] Mr. Kohinoor N. Bhattacharya, counsel having relied on

the decision of the Apex Court in Shiji Alias Pappu & Ors. Vs. Radhika

& Anr. reported in (2011) 10 SCC 705 has contended that in the

cases where there is no chance of recording conviction against accused

and the entire exercise of trial is destined to be an exercise in futility,

High Court is empowered to quash the proceedings in exercise of

section 482 IPC involving non compoundable offence.

[26] Mr. Bhattacharya, counsel has also relied on the decision

of the Apex Court in Mohinder Singh Vs. Gulwant Singh & Ors. with

Mohinder Singh Vs. Mohinder Pal & Ors. reported in (1992) 2 SCC

213 in support of his contention that in such cases High Court can

quash the proceedings in exercise of power under section 482 Cr.P.C.

[27] I have gone through both the judgments relied on by the

counsel of the petitioner. The facts of the cases are completely

distinguishable and the petitioner cannot derive any benefit from those

decisions.

[28] In the case in hand, PW-3, who appears to be a

disinterested witness categorically asserted that the victim and the

accused were frequent visitors to each others' house. But few days

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before the occurrence, a dispute cropped up between the two families

over the ownership of a jackfruit tree. Her evidence is credible because

in her examination in chief also she gave a true version of what she

heard from the victim.

[29] Admittedly, the victim was not alone at home. According

to her, she was watching T.V. along with her niece who was more than

10 years of age. At that time of occurrence, accused who was a

frequent visitor to the house of the victim allegedly went to their house

and he was allowed to sit on their bed. After some time the two girls

ran out and told their neighbour that accused outraged the modesty of

the victim. In the course of trial, mother of the victim as well as the

victim was very keen to settle the matter. There is no allegation against

the accused that he ever tried to influence the prosecution witnesses or

subjected them to any kind of coercion for settlement. Right from

beginning they wanted a settlement. After the mother of the victim

returned home from her work and came to know about the occurrence,

she reported the matter first to local panchayet and in the afternoon of

the following day she reported the matter to police.

[30] The whole circumstances portrays serious and grave

doubts with regard to the veracity of the occurrence particularly when it

has been evidenced by a completely disinterested witness that

animosity cropped up between the two families only few days before the

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occurrence. With such doubts in mind the conviction and sentence

awarded to the convict petitioner cannot be upheld.

[31] Resultantly, the criminal revision petition stands allowed.

The convict petitioner stands acquitted and set at liberty. The matter is

disposed of.

Send down the LC record. Pending application(s), if any,

shall also stand disposed of.

JUDGE

Rudradeep

Crl. Rev. P. No. 65 of 2016