Shri Sujan Das vs The State Of Tripura
2021 Latest Caselaw 1040 Tri

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                               HIGH COURT OF TRIPURA
                                     AGARTALA

                               Crl. Rev. P. No. 21 of 2018

      Shri Sujan Das,
      Son of Sri Indra Kumar Das, resident of Birganj, P.S. Birganj, Gomati,
      Tripura

                                                                   ----- Petitioner(s)
                                        Versus


1.    The State of Tripura,
2.    Smt. Ballu Roy,
      Wife of Sri Hari Krishna Roy, Vill-Birganj, P.O. Birganj, P.S. Birganj,
      Dist. Gomati Amarpur, Tripura
3.    Smti. Pinki Roy,
      Daughter of Sri Hari Krishna Roy, Vill-Birganj, P.O. Birganj, P.S.
      Birganj, Dist. Gomati, Amarpur, Tripura

                                                                -----Respondent(s)

For Petitioner(s) : Mr. S. Bhattacharjee, Adv.

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

      Date of Hearing                   :     7th July, 2021.
      Date of Pronouncement             :     8th October, 2021.

      Whether fit for reporting         :     NO


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

By means of filing a criminal revision petition on

04.06.2018 petitioner challenged the judgment and order dated

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28.03.2018 passed by the Sessions Judge, Gomati Judicial District in

Criminal Appeal No. 47(3) of 2016 affirming the judgment and order

dated 12.08.2016 passed by the Judicial Magistrate First Class, Amarpur

in Case No. GR 184 of 2011 whereby the learned Judicial Magistrate

convicted the petitioner for offence punishable under sections 448 and

354 IPC and sentenced him to RI for one year under section 448 IPC

and RI for 2 years under section 354 IPC and a fine of Rs.5,000/- with

default stipulation.

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

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

police station at Amarpur on 03.11.2011 wherein it was alleged that at

about 10.30 pm at previous night, the petitioner who was a neighbour

of her entered into her house and outraged the modesty of her

daughter by pulling her hands. Following her cry, the neighbours came

out and rescued her daughter. The accused was also physically

assaulted by the neighbours. When she returned home she saw the

accused in her house who was detained by her neighbours.

[3] On the basis of the said FIR, Birganj PS case No. 83 of

2011 was registered for offence punishable under sections 448 and 354

IPC and the same was investigated by Goutam Jamatia, Sub Inspector

of Police who after completion of investigation charge sheeted the

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petitioner for having committed offence punishable under sections 448

and 354 IPC.

[4] The trial commenced in the court of the Judicial

Magistrate First Class at Amarpur. Since the accused pleaded not guilty

to the accusation, the prosecution witnesses were called. During trial,

seven prosecution witnesses including the victim and her father were

examined. After the recording of prosecution evidence was over,

accused was examined under section 313 Cr.P.C. He abjured his guilt

and claimed that the charge was foisted on him. Accused petitioner

declined to adduce any evidence on his defence. On appreciation of

evidence, trial court came to the conclusion that both the charges under

sections 448 and 354 IPC was proved against the petitioner for which

he was convicted and sentenced to imprisonment as stated above.

[5] Petitioner challenged the judgment and order of his

conviction and sentence by filing appeal in the court of the Sessions

Judge of Gomati Judicial District at Udaipur. Learned Sessions Judge

having found no fault with the findings of the learned trial court

affirmed the conviction and sentence of the petitioner.

[6] The aggrieved petitioner has challenged the impugned

judgment passed by the learned Sessions Judge in this criminal revision

petition mainly on the following grounds:

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(i) Learned Sessions Judge did not appreciate the fact that the

victim, a matured lady categorically stated in her cross examination

that the case was lodged against the accused who was a neighbour of

her as a result of misunderstanding between them.

(ii) Learned Sessions Judge did not appreciate the fact that when

the offence was committed it was a compoundable offence under

section 320 Cr.P.C. and the parties amicably settled the matter since

they were neighbours of each other and wanted to live in peace and

harmony.

(iii) The learned Sessions Judge erroneously affirmed the conviction

and sentence of the petitioner passed by the trial court without taking

into consideration the cross examination of the prosecution witnesses.

[7] During the pendency of this criminal revision petition,

petitioner filed I.A No. 02 of 2020 seeking permission of the court under

section 320 Cr.P.C for compounding the offence.

[8] I have heard Mr. S. Bhattacharjee, learned advocate

appearing for the petitioner as well as Mr. R. Datta, learned P.P

representing the State respondent.

[9] Undisputedly, offence punishable under section 354 IPC is

no longer a compoundable offence. By the Amendment Act of 2009, a

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new table has been substituted under sub section (2) of section 320

Cr.P.C. w.e.f. 31.12.2009 laying down the offences which are

compoundable with the permission of the court. Section 354 IPC does

not find place in the amended table under sub section (2) of section 320

Cr.P.C. The alleged offence took place on 02.11.2011 after the

amendment came into force. Therefore, the offence committed by the

petitioner cannot be treated as an offence compoundable under sub

section (2) of section 320 Cr.P.C. Relying on the decision of the Apex

Court in the case of Gian Singh Vs. State of Punjab & Anr. reported

in (2012) 10 SCC 303 counsel of the petitioner contends that the Apex

Court has laid down guidelines in the said judgment for quashing

criminal proceedings involving non compoundable offence in view of

compromise arrived at between the parties. Counsel has also relied on

the decision of the Apex Court in Narinder Singh & Ors. Vs. State of

Punjab & Anr. reported in (2014) 6 SCC 466 to support his

contention that even though the offence is non compoundable, the High

Court has inherent power under section 482 to quash the criminal

proceedings involving non compoundable offences in view of

compromise/settlement arrived at between the parties.

[10] Mr. Bhattacharjee, counsel of the petitioner further

contends that if the court does not find it permissible to accord

permission for compounding the offence, court may decide the case on

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merit. Counsel submits that the evidence of the victim does not

establish any case punishable under sections 448 and 354 IPC. There is

no evidence with regard to slightest molestation or sexual harassment

of the victim. Moreover, in her cross examination, the victim

categorically stated that the accused was a neighbour of her and the

case resulted from a misunderstanding between them. Same evidence

was given by her father in his cross examination. Counsel submits that

the trial court did not take their cross examination into consideration

and erroneously came to a conclusion of the guilt of the petitioner which

was upheld by the learned Sessions Judge without application of mind.

Counsel submits that the evidence available on record does not support

the case against the petitioner and therefore the impugned judgment is

liable to be set aside.

[11] Mr. R. Datta, learned P.P on the other hand submits that

in so far as the I.A seeking permission for compounding the offence is

concerned, the petition cannot be allowed because the same is not a

compoundable offence under section 320 Cr.P.C. Learned P.P contends

that since the victim as well as her father stated during their cross

examination that the case resulted from a misunderstanding between

his daughter and the accused, the case may be decided on merit and

appropriate order may be passed.

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[12] With regard to the submission of the counsel of the

petitioner for compounding the non compoundable offence, it is found

that in the case of Gian Singh (Supra) appellant was convicted under

sections 420 and 120B IPC in which the High Court dismissed the

petition of the appellant on the ground that section 120B was a non

compoundable offence. When the matter came up before the Apex

Court, the Apex Court vide paragraph 61 of the Judgment held as

under:

"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute.

Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like

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the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

[13] Same principle was reiterated by the Apex Court in the

case of Narinder Singh & Ors. (Supra). In the case of Narinder

Singh & Ors. (Supra) the petitioners were charged under sections

307, 324, 323 and 34 IPC. Both the parties arrived at a compromise

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and they had undertaken not to indulge in any litigation and agreed to

withdraw all complaints pending between them in court. High Court was

not impressed and their petition was dismissed by the High Court

because section 307 IPC was a non compoundable offence and

moreover the medical report depicted injuries of grievous nature. The

Hon'ble Supreme Court reiterated the ratio decided in the case of Gian

Singh (Supra) and held as under:

"11. As to under what circumstances the criminal proceedings in a non-compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: [Gian Singh case; (2012) 10 SCC 303, SCC pp. 340-

41, para 58]

"58. Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other

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offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed."

Thereafter, the Apex Court summed up the legal

position in the following words vide paragraphs 28 and 29 of the

Judgment:

"28. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved

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beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.

29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on

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society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves."

[14] Factual context of the two cases relied on by the counsel

of the petitioner are completely distinguishable. However, following the

principles laid down by the Apex Court in the case of Gian Singh

(Supra) this court is of the view that in the given facts and

circumstances of the case, this court cannot arrive at a finding that it

would be unfair or contrary to the interest of justice to continue with

the criminal proceeding or continuation of the criminal proceedings

would tantamount to abuse the process of law despite the settlement

and compromise between the victim and the wrong doer. This court is

of the view that the matter should be decided on merit for which I have

heard the learned counsel of the parties at length and considered the

submissions made by them.

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

sections 397 and 401 Cr.P.C is well defined by the Apex Court in a

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

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

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

the 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

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reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned 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."

[16] In the course of his arguments, counsel appearing for the

parties had taken this court to the evidence of the prosecution

witnesses. PW-1 is the victim who simply stated in her examination in

chief that after attending nature's call when she entered into her room

in the dwelling hut, the accused who was a next door neighbour of her

was found sitting in her room. He proposed to her and pulled her by

catching hold of her hand. Then she cried. Her younger brother

appeared from the adjoining room. By that time, the neighbours also

appeared and caught the accused.

In her cross examination, she categorically stated that

the case was filed due to some misunderstanding. Therefore, the matter

was amicably settled.

[17] Her mother deposed in the case as PW-2. She did not see

the occurrence. She was away from home when the occurrence took

place. After returning home, she heard about the occurrence from her

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victim daughter and son. She almost gave the same version that the

accused pulled her daughter by catching hold of her hand.

[18] PW-3 is the father of the victim who also gave the same

evidence. He was also away from home when the occurrence took

place. He heard about the occurrence from his daughter and son after

returning home.

In his cross examination, he also stated that the case

arose from a misunderstanding between her daughter and accused.

[19] PW-4 is the younger brother of the victim who told the

trial court that hearing the cry of his sister he entered into her room

and found the accused trying to pull out his sister by catching hold of

her hand. Both of them started crying for help. The neighbours

appeared and rescued his sister.

[20] PW-5, PW-6 and PW-7 are their neighbours. None of

them had witnessed the occurrence. They deposed that they heard

about such occurrence.

[21] PW-8 is the investigating officer who deposed that relying

on the police statements of the witnesses he submitted the charge

sheet against the accused.

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In his cross examination, he stated that he had no idea as

to whether the case was settled between the parties.

[22] Having appreciated the evidence, the trial court held that

it was proved that accused entered into the room of PW-1 and tried to

take her out by catching hold of her hand and thereby the accused

committed offence punishable under sections 448 and 354 IPC. Learned

Sessions Judge examined the judgment of the trial court and re-

evaluated the evidence of the prosecution witnesses in appeal. It was

viewed by the learned Sessions Judge that since the victim was married

and settled in life, the witnesses having been driven by the changed

circumstances told in their cross examination that parties arrived at a

compromise. With a view to the nature of the offence and the evidence

adduced on behalf of the prosecution, the learned Sessions Judge

dismissed the appeal and affirmed the conviction and sentence of the

petitioner.

[23] Evidently, in this case, apart from the fact that the

petitioner tried to pull the victim out of her room by catching hold of her

hand, there is no other evidence against him. Counsel of the petitioner

argued that the said fact does not demonstrate that accused had any

intention to outrage the modesty of the victim which is the gravamen of

an offence punishable under section 354 IPC. In this regard, the Apex

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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 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:

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on her; and

(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.

23. This Court, in Vidyadharan v. State of Kerala (2004) 1 SCC 215 : (AIR 2004 SC 536, Para 11), held as under "

10. Intention is not the sole criterion of the offence punishable under Section 354, IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected.

Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in

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which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight ....."

24. It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events which we have detailed earlier indicates that the appellant-accused had the requisite culpable intention.

25. This Court, in Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560, held as under:-

"39. So far as the offence under Section 354 IPC is concerned, intention to outrage the modesty of a woman or knowledge that the act of the accused would result in outraging her modesty is the gravamen of the offence.

40. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex."

[24] In the given case, undisputedly the accused was a next

door neighbour of the victim and as a neighbour he had access to her

house. It is no case of the victim that he forcefully entered into her

room. At the time of occurrence her parents were also away from home.

Only she and her younger brother were at home. She stated that

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accused initially proposed to her and then he tried to pull her out by

catching hold of her hand. In her cross examination, she clearly stated

that the case arose out of a misunderstanding. Her parents did not see

anything. They simply believed their daughters' version and reported

the matter to police.

[25] It is thus clear that there is no eye witness to the

occurrence other than the victim herself. Her younger brother who was

a minor boy at the time of occurrence did not also witness the whole

incident. He simply stated that he saw the accused catching hold of her

sister and trying to pull her out.

[26] In these peculiar circumstances, learned trial court as

well as the appellate court should have accepted the version of the

victim that the case was lodged as a result of her misunderstanding.

The courts below should have accepted her version in the plain meaning

of her words without attributing any other meaning. Statements made

out in cross examination is an integral part of the testimony of the

witness which cannot be discarded without plausible reason. Purpose of

cross examination of a witness is to test the veracity of the statement of

the witness made out in examination in chief. Therefore, equal

importance should be attached by the court to the cross examination of

a witness during evaluation of the evidence of such witness. In the

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peculiar facts and circumstances of the case, the trial court as well as

the appellate court should have believed the statement of the victim

that she lodged the case due to misunderstanding.

[27] In view of what is discussed above, this court is of the

view that case against the accused is doubtful and the benefit of such

doubts should be given to the accused. Resultantly, the criminal

revision petition stands allowed and the case is disposed of.

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

shall also stand disposed of.

JUDGE

Rudradeep

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