Sri Ratan Bhowmik vs The State Of Tripura
2022 Latest Caselaw 404 Tri

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                                    HIGH COURT OF TRIPURA
                                          AGARTALA

                                    Crl. Rev. P. No. 43 of 2020

Sri Ratan Bhowmik,
Son of Late Santi Lal Bhowmik of Haripur, P.S. Belonia, Dist. South Tripura.
                                                          ----- Revision Petitioner(s)
                                             Versus
The State of Tripura
                                                                           -----Respondent(s)

For Petitioner(s)                            :        Mr. S. Sarkar, Sr. Adv.
                                                      Ms. Shima Banik Deb, Adv.
                                                      Ms. P. Chakraborty, Adv.
For Respondent(s)                            :        Mr. S. Debnath, Addl. P.P.
Date of Hearing                              :        26th November, 2021.
Date of Pronouncement                        :        6th April, 2022.
Whether fit for reporting                    :        YES

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

This criminal revision arises from the judgment and order dated

23.11.2020 passed by the Sessions Judge, South Tripura, Belonia in Criminal Appeal

No.12 of 2020 affirming the judgment and order of conviction and sentence dated

12.02.2020 passed by the Chief Judicial Magistrate, South Tripura, Belonia in case

No. PRC (WP) 15 of 2018 whereby the learned Chief Judicial Magistrate convicted

the petitioner for having committed offence punishable under section 354 IPC and

sentenced him to RI for one year and fine of Rs.5,000/- with default stipulation.

[2] Factual background of the case is as under:

Victim lodged a written FIR with the officer in charge of

Hrishyamukh police outpost at Belonia on 25.12.2017 at around 4 O'clock in the

afternoon alleging that at 12.30 noon on the day when she was in the kitchen of

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her house, accused made an entry into her kitchen in absence of her husband and

sons at home. He gave an indecent proposal to her and also offered her money.

Suddenly, he embraced her and tried to disrobe her. He also touched her breasts.

To free herself from the hold of the accused, victim took up a dao (a sharp cutting

weapon) and caught hold of his shirt. They started scuffling with each other and

came to the courtyard. Her younger son who was having a bath in the nearby

tubewell came to the rescue of his mother. People who were engaged in work in

the nearby paddy field also rushed to the house of the victim and detained the

accused. After a while, wife of the accused and 12-15 relatives of the accused came

to there and they forcibly took away the accused from there. While leaving, they

threatened the victim with dire consequences.

[3] The officer in charge of Hrishyamukh police outpost recorded the

information in the General Diary of the police outpost vide HRM O/P GDE No.13

dated 25.12.2017 and forwarded the FIR to the officer in charge of Belonia Women

police station for registration of case. Based on the FIR of the victim, Belonia

Women police station case No.2017 WMN 057 under sections 448,354 and 506 IPC

was registered and the case was endorsed to Women Sub Inspector of police Rubi

Bala Baidya for investigation.

[4] In the course of investigation, the investigating officer had visited

the crime scene on the following day and seized the slippers of the accused and a

piece of his shirt which got ripped during his scuffling with the victim from the

courtyard of the victims' house. She had also drawn up a hand sketch map of the

crime scene along with separate index indicating therein the material locations of

the crime scene. Thereafter, the investigating officer examined the victim and other

witnesses acquainted with the facts of the case and recorded their police

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statements under section 161 Cr.P.C. Victim was also produced before the Judicial

Magistrate who recorded her statement under section 164(5) Cr.P.C.

[5] Having concluded the investigation, the investigating officer laid

charge sheet against the accused for having committed offence punishable under

sections 448, 354 and 506 IPC. Names of as many as ten charge witnesses

including the victim and the investigating officer were listed in the charge sheet.

The Judicial Magistrate, First Class received the charge sheet and took cognizance

of the offence punishable under sections 448, 354 and 506 IPC. Thereafter, trial

commenced in the court of the Judicial Magistrate, First Class with the framing of

the following charges against the accused:

"Firstly:- That, you the above named accused person on 25.12.17 around 12.30 hours committed criminal trespass by entering into the house of the informant with intent to commit an offence and by doing so you have committed the offence punishable U/S 448 of I.P.C.

Secondly:- That, on the alleged date, time and place you the above named accused used criminal force upon the informant with intent to outrage her modesty and by doing so you have committed the offence punishable U/S 354 of I.P.C. Lastly:- That, on the alleged date, time and place you the above named accused threatened the informant with dire consequence and by doing so you have committed the offence punishable U/S 506 of I.P.C.

And this Court do hereby direct that you be tried on the said charge."

Accused pleaded not guilty to each of the charges and claimed trial

of the case.

[6] In the course of trial, prosecution examined eight out of ten charge

witnesses. Among them, PW-1 is the victim, PW-2 is her husband, PW-3 is the

younger son of the victim, PW-4 was working in the nearby paddy field from where

he appeared in the house of the victim following her hue and cry along with PW-5.

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PW-6 is a neighbour of the victim, PW-7 is also a neighbour of her and PW-8 is the

investigating officer.

[7] After the prosecution evidence was closed, the learned trial Judge

examined the accused under section 313 Cr.P.C by explaining to him the

incriminating circumstances which appeared against him from the prosecution

evidence. When he was asked to explain the seizure of his slippers and the torn

piece of his shirt from the courtyard of the house of the victim, accused replied that

he could not say anything about such seizure. He claimed that the statements of

the prosecution witnesses were entirely false and he was implicated in a false case.

It appears from the memorandum of the examination of the accused under section

313 Cr.P.C that no answer of the accused has been recorded under questions No.18

and 19 which are as under:

"Q.No.18. Would you like to adduce any witness on your behalf? Q. No.19. Do you have anything more to say?"

[8] However, no evidence was adduced by the accused and his counsel

never raised the issue during trial or during the hearing of his appeal before the

learned Sessions Judge.

[9] On appreciation of evidence, the trial court came to the conclusion

that by the clear, consistent and trustworthy evidence of the prosecution witnesses,

charge under section 354 IPC was proved against the petitioner. Accordingly, the

learned trial court convicted him under section 354 IPC. The learned trial Judge,

however, held that charges under sections 448 and 506 IPC were not proved

against the petitioner for lack of evidence and accordingly petitioner was acquitted

of those charges. For his conviction under section 354 IPC, the learned trial court

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sentenced him to RI for one year and a fine of Rs.5,000/- with default stipulation

after hearing him on sentence.

[10] As stated, petitioner challenged his conviction and sentence in the

court of the learned Sessions Judge and by the impugned judgment, the learned

Sessions Judge affirmed the decision of the trial court observing as under:

"12. On going through the entire evidence I find that, appellant took the plea that since there was dispute regarding payment of money of power tiller, he was falsely implicated in this case. But that fact could not be proved by him. Rather, from the evidence of the prosecution witnesses I find that the appellant entered into the house of the victim and few persons saw him scuffling with the victim and the victim specifically has stated that the appellant outraged her modesty. Even one independent witness i.e. PW-4 has corroborated the victim and stated that the victim reported to him that by giving illegal proposal the convict- appellant outraged her modesty and the victim herself has admitted the incident and involved the appellant and stated that appellant entered into her kitchen and by giving illegal proposal by offering money outraged her modesty by touching various parts of her body even her breast. I do not find any ground to disbelieve the evidence of the victim. When a female herself admitted assault on her person affecting her chastity in absence of enmity between the appellant and the victim, the victim cannot be disbelieved. It is clear that the incident first initiated into the kitchen of the house of the victim and last at up to the courtyard of that house. But it is also fact that learned Court below did not convict the appellant for the offence punishable under Sec. 447 or 448 IPC, but for that the offence under Sec. 448 IPC when found proved in the prosecution evidence, cannot be over looked. Since learned Court below did not convict the appellant under Sec. 447 or 448 of IPC and no appeal was also preferred by the prosecution against that sections, I am not inclined to interfere into that portion. But I am satisfied that the prosecution evidence clearly proved the offence punishable under Sec. 354 IPC as against the convict-appellant. Accordingly, I upheld the sentence imposed by learned trial Court for the offence punishable under Sec. 354 of IPC.

13. So, in the totality of the evidence of the witnesses I find no impropriety in the judgment of learned trial Court justifying any interference from this Court. I find no merit in the appeal. Thus, the appeal is dismissed. The convict-appellant is hereby directed to surrender before learned trial Court within one month from today to undergo the sentence."

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[11] Heard Mr. S. Sarkar, learned senior advocate appearing along with

Ms. Shima Banik Deb and Ms. P. Charkaborty, learned advocates for the petitioner.

Also heard Mr. S. Debnath, learned Addl. P.P representing the State respondent.

[12] Mr. Sarkar, learned senior advocate appearing for the petitioner has

assailed the impugned judgment on various grounds. Counsel contends that

prosecution projected an improbable story because it was quite unlikely that the

accused who was a neighbour of the victim would enter into her house in broad

daylight to outrage her modesty. Counsel contends that the accused who was a

cultivator used to borrow the power tiller of the victim on rent for ploughing his

land and on the issue of payment of its rent, they had developed a dispute which

resulted in the prosecution of the accused on false charge. Counsel contends that

none heard the accused making an indecent proposal to the victim and offering

money to her. The story was manufactured by the victim to avenge her animosity

towards the accused. Counsel contended that the trial court as well as the learned

Sessions Judge should have examined the version of the victim against the broad

probabilities of the case before arriving at the conclusion that her version was true.

Counsel argued that in a sexual harassment case, particularly when there were

reported animosity between the parties, the evidence of the victim should have

been treated with more care and circumspection and that having not been done,

the impugned judgment calls for intervention and it would be appropriate to set

aside the conviction and sentence of the accused.

[13] Mr. Debnath, learned Addl. P.P on the other hand contended that

the victims' statement was corroborated by the evidence of the eye witnesses and

moreover the slippers of the accused and torn piece of his shirt was seized from the

courtyard of the house of the victim and the accused could not offer any

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explanation how his slippers and shirt were seized from the victims' house. Learned

Addl. P.P contended that prosecution established its case beyond reasonable

shadow of doubt and petitioner could not produce any material before the court to

raise any doubt about the veracity of the prosecution story. Counsel, therefore,

urged for dismissal of the criminal revision petition.

[14] In the course of their argument, counsel appearing for the parties

have taken this Court to the evidence of the prosecution witnesses. The victim as

PW-1 in her examination in chief asserted that accused entered into her kitchen at

about 12.30 noon on the material day and gave an indecent proposal to her and

hugged her from behind. At that time, he also touched her breasts. The victim then

raised alarm. Amar Sarkar, Tamal Guha, Sribash Debnath and Santi Tripura came to

her rescue from the nearby places. Her younger son also appeared there from the

nearby place where he was taking bath. Her son also told her that the accused

before committing the offence enquired from her son as to who were there in the

house at that time. The victim further stated that after the matter was reported to

police, police came and seized the slippers along with a torn piece of shirt of the

accused from the courtyard of her house.

In order to impeach her evidence, counsel of the accused cross

examined her. The cross examiner only made some suggestions to her. In one of

those suggestions, she was told that her power tiller was taken on rent by the

accused for which he also paid some advance to her and subsequently when the

accused demanded his money back she lodged a false case against him. The victim

denied the suggestion of the cross examiner.

[15] PW-2 is her husband who told the trial court that he appeared in

his house after he was informed by his younger son about the occurrence. The PW

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stated that he came to know from his wife that accused made an indecent proposal

to her and outraged her modesty by touching her body. When she cried for help,

the people appeared from the neighbourhood to her rescue.

In the cross examination, it was suggested to the PW that the

slippers which were seized from his house by police did not belong to the accused.

He denied the suggestion.

[16] PW-3 is the younger son of the victim. He found the accused

scuffling with his mother in the courtyard of their house. He immediately informed

his father. The PW also told the trial court that even before the occurrence, he had

seen the accused at a nearby place.

In his cross examination, the PW confirmed that he was taking his

bath at the material time at one minute walking distance from his house from

where he had seen the scuffling between the accused and his mother.

[17] PW-4 appeared at the place of occurrence following hue and cry of

the victim. He saw the accused and the victim scuffling. Later, he came to know

from the victim that she was given an indecent proposal by the accused who also

offered her money.

In his cross examination, it was suggested to him that he did not

see anything. The PW denied the suggestion.

[18] PW-5 who also appeared at the house of the victim told the court

that while he appeared at the place of occurrence following hue and cry, he found

the accused and the victim arguing with each other and came to know that accused

gave a vulgar proposal to the victim.

[19] PW-6 gave same evidence. He was collecting firewood from a

nearby place at the material time. He appeared at victim's house following a hue

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and cry and found the accused and the victim arguing with each other on some

issue. He came to know from the victim that accused gave an indecent proposal to

her.

[20] PW-7, a neighbour of the victim was engaged in work in his betel

leaf garden at the material time. When he appeared at the house of the victim

following her cry, he found a huge crowd in the house and came to know from the

victim that accused came there and gave ill proposal to her.

In his cross examination, it was suggested to the PW by the cross

examiner that his statement was entirely false. He denied the suggestion.

[21] PW-8 is the investigating officer who stated before the trial court

that during investigation, the witnesses having supported the charge against the

accused, she laid charge sheet against the accused.

[22] The fact that at the time of occurrence accused was found in the

house of the victim stands established. There is no palpable reason to disbelieve

the evidence of the eye witnesses who saw the accused in the house of the victim

from a nearby place. The fact that slippers of the accused and the ripped piece of

his shirt were recovered and seized from the house of the victim also stand

established. There is no explanation from the side of the accused as to how his

slippers and shirt were seized from the house of the victim. During his examination

under section 313 Cr.P.C, the trial Judge asked him to explain the seizure of those

articles which was going to be used as incriminating piece of evidence against him.

In reply, accused made an evasive statement saying that he could not say anything

about the seizure. Victim on the other hand gave a categorical statement that

accused gave an indecent proposal to her and thereafter he hugged her and

pressed her breasts and thus outraged her modesty.

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[23] Evidently, the victim dragged the accused to the courtyard of her

house from her kitchen by catching hold of his shirt. PW-4 saw the victim scuffling

with the accused in the courtyard of her house. The sequence of events thus clearly

prove the prosecution charge against the accused. Accused, on the other hand,

tried to defend himself at the trial court by saying that he had a past dispute with

the family of the victim owing to financial transactions. He could not produce any

material in support of such defence version.

[24] Question which falls for consideration is whether such conduct of

the accused can be treated as an offence punishable under section 354 IPC. The

Apex Court in S.P.S. Rathore vs. C.B.I. & Anr. reported in 2017 CRI. L.J. 537

held that 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.

[25] In the said judgment, the Apex Court having refereed to its earlier

decision in Vidyadharan vs. State of Kerala reported in (2004) 1 SCC 215:

(AIR 2004 SC 536) also held that knowledge and intention are essentially things

of the mind and cannot be demonstrated like physical objects and therefore the

existence of intention or knowledge has to be culled out from various circumstances

in which and upon whom the alleged offence is alleged to have been committed.

The Apex Court in the case of S.P.S. Rathore (Supra) also referred to its decision

in Tarkeshwar Sahu vs. State of Bihar reported in (2006) 8 SCC 560 where

the Apex Court held that the reaction of the woman in such circumstances is also a

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very relevant consideration, but its absence is not always decisive. The observation

of the Hon'ble Apex Court in the said judgment in the case of S.P.S. Rathore

(Supra) 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 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

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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."

[26] In the given case, it is clear from the consistent and corroborative

evidence of the prosecution witnesses that accused entered into the kitchen of the

victim when she was alone in her kitchen. Victim stated that accused then gave an

indecent proposal to her and also hugged her and pressed her breasts. Victim

reacted violently to the said conduct of the accused. She caught hold of her shirt

and started dragging him to the courtyard of her house where they were noticed by

the witnesses those who were working in the nearby places at a visible distance

including her younger son [PW-3].

[27] Having examined the sequence of events in the light of the

judgment of the Apex Court cited to supra, I am of view that conduct of the

accused clearly constitutes an offence punishable under section 354 IPC and the

evidence of the victim [PW-1] having been corroborated by the evidence of the

other prosecution witnesses, charge against the accused has been proved beyond

reasonable shadow of doubt and as such the learned Sessions Judge committed no

error in upholding the conviction of the petitioner under section 354 IPC.

[28] Since, imprisonment for a term of one year is the minimum

punishment prescribed for the offence punishable under section 354 IPC, the

sentence passed by the trial court and affirmed by the learned Sessions Judge in

appeal does not also call for any interference. As a result, the petition stands

dismissed.

[29] Petitioner is directed to surrender before the trial court within a

period of one month to suffer the sentence failing which the learned trial Judge

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shall compel his appearance before the trial court by issuing appropriate process in

accordance with law and commit him to prison to suffer the sentence.

[30] In terms of the above, the petition stands disposed of. Pending

application(s), if any, shall also stand disposed of. Send down the LCR.

JUDGE

Rudradeep

Crl. Rev. P. No.43 of 2020