Sri Purnendu Aich vs The State Of Tripura
2022 Latest Caselaw 454 Tri

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                              HIGH COURT OF TRIPURA
                                    AGARTALA
                              Crl. Rev. P No.03 of 2021
Sri Purnendu Aich
Son of late Dhirendra Aich,
Resident of village- Chandrapur Colony No. 1,
PS and PO- Radhakishorepur- 799001 ,
District- Gomati, Tripura.
                                                                ............... Petitioner(s).

                                           Vs.

The State of Tripura
Represented by the Ld. PP, High Court of Tripura, Agartala
                                                         ............... Respondent(s).

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Petitioner(s) : Mr. D. K. Daschowdhury, Advocate.

        For Respondent(s)                  :     Mr. S. Debnath, Addl. P.P.
        Date of hearing                    :     15th December, 2021.
        Date of Judgment & Order           :     19th April, 2022.
        Whether fit for reporting          :     NO.


                            J U D G M E N T AND O R D E R

By means of filing this criminal revision petition, petitioner Purnendu

Aich has challenged the judgment and order dated 17.02.2020 passed by the

Sessions Judge, Gomati Judicial District, Udaipur in Criminal Appeal No.33 of 2019.

Petitioner was convicted under Section 354 IPC and sentenced to rigorous

imprisonment (R.I) for a term of one year with default stipulation by the Judicial

Magistrate, First Class by judgment and order dated 14.08.2019 delivered in

PRC(WP) No.24 of 2019. He appealed against the order in the court of the

Sessions Judge at Udaipur. The learned Sessions Judge by the impugned judgment

affirmed his conviction under Section 354 IPC but reduced his sentence from

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rigorous imprisonment (R.I) for a term of one year to rigorous imprisonment (R.I)

for a term of six months with default stipulation which is under challenge in this

criminal revision.

[2] Heard Mr. D. K. Das Chowdhury, learned counsel appearing for the

petitioner as well as Mr. S. Debnath, learned Additional Public Prosecutor

representing the State.

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

Father of the victim (name withheld) lodged a written FIR with the

Officer-in-Charge of R. K. Pur Women Police Station on 09.01.2019 alleging, inter

alia, that her 16 years‟ old victim daughter who was a Madhyamic candidate had

taken a room on rent in the house of the accused for prosecuting her studies from

there. On 08.01.2019 at about 9.30 pm when the victim was studying in her room,

accused knocked on her door and asked her to open the door which was closed

from inside. Soon after she opened the door, accused made an entry into her

room and embraced her. He also caught hold of her hand and tore her chain.

When she cried for help, accused left. Immediately thereafter she informed her

father about the incident over his cell phone. He arrived and rescued his daughter

from there. On the following day he reported the matter to police by lodging the

FIR.

[4] Based on his FIR, R. K. Pur Women P.S case No.2019 WP 002 under

Sections 448, 427 and 354 IPC and Section 8 of the Protection of Children from

Sexual Offences Act, 2012 was registered and the case was taken up by woman

Sub-Inspector of police Smt. Shova Rani Teli for investigation.

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[5] In the course of her investigation, the Investigating Officer visited

the crime scene. She had drawn up a hand sketch map of the crime scene with a

separate index indicating the material locations of the crime scene. Thereafter she

met the victim and her father, examined them and recorded their police

statements under Sections 161 Cr. P.C. She also recorded the police statements of

other witnesses acquainted with the facts of the case and seized the Permanent

Resident Certificate of the victim from the possession of her mother which

indicated that victim was born on 06.01.2001. During investigation, victim was also

produced in Court before a Judicial Magistrate of the First Class at Udaipur who

recorded her statement under section 164(5) Cr. P.C (Exbt.3). Having found

sufficient materials against the accused, the Investigating Officer laid charge sheet

against him for having committed offence punishable under Sections 448, 427 and

354 IPC.

[6] Cognizance of offence was taken and trial commenced with the

framing of charges punishable under Sections 448 and 354 IPC against the

accused. Accused pleaded not guilty to the said charges and desired to stand the

trial.

[7] In the course of trial prosecution examined 11 witnesses in all.

Among them PW-1 is the scribe of the FIR. PW-2 is a teacher of the school where

the victim was a student. PW-3 is a social worker who accompanied the father of

the victim to rescue his daughter from the rented house after the occurrence. PW-

4 is the brother of victim‟s father and PW-5 is victim‟s father. PW-6 is the victim

herself and PW-7 is her mother. PWs-8 and 9 are the neighbours of the accused

and PW-10 is the Investigating Officer. PW-11 is the Judicial Magistrate who

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recorded the statement of the victim under Section 164(5) Cr. P.C during

investigation of the case.

[8] After the evidence of the witnesses was recorded, the trial court

examined the accused under Section 313 Cr. P.C on 10.4.2019 by explaining to

him all the incriminating circumstances which appeared against him from

prosecution evidence. Accused simply denied the incriminating statements of the

prosecution witnesses and claimed that he was falsely implicated in the case. To a

question, accused answered as under:

"I am totally innocent. I only told XXXXX (name withheld) not to call so many persons in her room for gossiping and I also told her that if she did not stop this, then I will inform her parents. Due to this, out of grudge, she forced her father to lodge the case against me"

[9] The learned trial Judge then listed the case for hearing arguments.

On 27.06.2019 the learned Additional Public Prosecutor applied for summoning the

Judicial Magistrate who recorded the statement of the victim under Section 164(5)

Cr. P.C. The learned trial judge summoned the witness and recorded her evidence.

Thereafter accused was again examined under Section 313 Cr. P.C on 5.7.2019.

Accused reaffirmed that he was falsely implicated in the case because he raised

objection when he saw some boys gathering inside the room of the victim during

night.

[10] On appreciation of evidence, the learned trial Court came to the

conclusion that prosecution by adducing consistent and trustworthy evidence

proved the charge under Section 354 IPC against the accused. The learned trial

Judge did not believe the defence case because accused could not adduce any

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evidence in support of his defence version. Trial court, however, held that the

charge under Section 448 IPC was not established against the accused because

the occurrence took place in his own house and he entered into the room of the

victim with her permission. Having held so, the trial court convicted the accused

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

stipulation.

[11] In appeal the learned Sessions Judge also believed the prosecution

story and held that evidence of the victim was very clear and convincing to the

affect that accused entered into her room and touched her body with sexual intent

in odd hours of night when he was not supposed to enter into the room of a girl

particularly when she was alone in her room. The learned Sessions Judge held that

by his conduct accused outraged the modesty of the victim which attracted penalty

under Section 354 IPC. It was also held by the learned Session Judge that even

though the accused tried to impress upon the court that the victim manufactured a

false case to harass him, he could not lead any evidence to establish his case. The

learned Sessions Judge, therefore, affirmed the conviction of the accused under

Section 354 IPC. Learned Sessions Judge however, reduced his sentence from R. I

for one year to R. I for six months with fine of Rs.5,000/- relying on the decision of

this Court in the case of Nakul Sarma Vrs. State of Tripura: reported in

(2019) 1 TLR 581 in which the High Court while setting aside conviction and

sentence of the accused under the POCSO Act convicted the accused under

Section 354 IPC and sentenced him to R.I for six months and fine of Rs.5,000/-

with default stipulation.

[12] Counsel appearing for the petitioner has strenuously argued that

except the victim there was no eye witness to the occurrence. Counsel contended Crl. Rev. P. No.03/2021.

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that victim was a tenant in the house of the accused. Few days prior to the

occurrence, she invited young boys to her room which was noticed by the

accused. Learned counsel submitted that during his examination under Section

313 Cr. P.C as well as during cross examination of the prosecution witnesses

accused projected a clear version that since he raised objection to the conduct of

the victim she made a false complaint against the accused to her father who

promptly lodged an FIR at the police station without even ascertaining the truth of

his daughter‟s statement. According to learned counsel appearing for the

petitioner, mother of the victim did not appear before the court because she did

not want to tell lie before the Court. Counsel contended that the trial court as well

as the appellate court should not have ignored these aspects while finding the

accused guilty of the charge. Counsel further contended that the judgment

impugned, if allowed to sustain, would cause gross miscarriage of justice.

[13] Mr. S. Debnath learned Additional Public Prosecutor on the other

hand vehemently opposed the contention of the counsel of the petitioner. Mr.

Debnath contended that from the statement of the victim recorded at the trial

Court, it would appear that she gave a convincing and trustworthy statement

before the trial Court. Counsel contended that after the incident occurred, she

immediately called her father and gave a detailed account of what happened to

her. Her father also lodged the FIR without any delay. These circumstances,

according to learned Additional Public Prosecutor proved that there was no

afterthought and false accusation. Counsel contended that no parents of a young

girl would expose their daughter to such a scandal unless the facts were genuine.

It was argued by Mr. Debnath, learned Additional Public Prosecutor that the

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judgment of the trial Court was founded on evidence and supported by sound

reasoning which was rightly affirmed by the appellate court. Counsel therefore,

urged for dismissal of the revision petition.

[14] As stated, all the 11 charge witnesses were examined at the trial

Court as PW-1 to PW-11. In the course of their arguments, the counsel appearing

for the parties had taken this court to the evidence of those witnesses which are

as under:

[15] PW-1, Smt. Saraswati Das told the trial court that on 9.1.2019 father

of the victim met her and requested her for writing an FIR for him. Accordingly,

following the version of victim‟s father she wrote the FIR and the informant signed

it after admitting the correctness of the contents of the document.

In her cross-examination it was suggested to her by the cross

examiner that she did not write the FIR following the exact version of victim‟s

father. The witness denied the suggestion.

[16] PW-2 was the teacher of the school (name withheld) where the

victim was studying. Having consulted the school record, the PW informed the

Investigating Officer that date of birth of the victim recorded in the school records

was 06.01.2001.

Defence counsel declined to cross examine the witness.

[17] PW-3 was a social worker. Victim‟s father solicited his help after he

received a call from his daughter at about 10 „O‟ clock in the night on 08.01.2019.

victim‟s father requested the PW to come to his house. When the PW met the

father of the victim at his house, he told him that on 31.12.2018 he left his Crl. Rev. P. No.03/2021.

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daughter in the house of the accused at Chandrapur to stay there on rent for

prosecuting her studies from there. He requested the PW to accompany him to the

house of the accused. Accordingly, both of them had gone to there. The victim

told her father that at around 9 „O‟ clock in the night accused who was the house

owner knocked her door. When she opened the door he embraced her. Accused

also tore her chain. Having heard the story from her daughter, father of the victim

brought back her daughter immediately. The PW also accompanied them.

Counsel of the accused put the PW to an incisive cross-examination.

During his cross examination he told the Court that again on 09.01.2019 he went

to the place of occurrence where police examined him. The cross examiner

suggested to the PW that he did not receive any call from the father of the victim

and he did not accompany the father of the victim to the house of the accused and

the victim did not tell his father that accused outraged her modesty. The PW

denied all these suggestions.

[18] PW-4 also received a call on 8.1.2019 at around 9.30 pm from his

brother who was the father of the victim. He immediately met his brother in his

house and along with his brother he went to the house of the accused where his

niece was living on rent. Her niece told him that the accused outraged her

modesty and tore her chain. Immediately she was brought back to her house by

her father.

In his cross-examination, counsel of the accused suggested to the

PW that he did not accompany his brother to the place of occurrence and his niece

did not tell that her modesty was outraged by the accused. The PW denied those

suggestions.

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[19] PW-5 is victim‟s father who told the trial court that only on

31.12.2018 he left his daughter in the house of the accused and the incident took

place seven days thereafter. The PW deposed in his examination in chief at the

trial Court that he took a room on rent in the house of the accused so that his

daughter could prosecute her study from there. Accordingly, he left his daughter in

the rented house on 31.12.2018. On 08.01.2019 at around 9.30 pm, his daughter

informed him over phone that the accused knocked on her door and after she

opened the door he touched her neck and he also "tried to touch her chest". His

daughter reacted to the conduct of the accused by raising cry. The accused then

left her. The PW further told the court that immediately after receiving the phone

call from his daughter he along with PW-3, his brother PW-4 and some other

neighbours of him went to the house of the accused and brought back his

daughter. On the following day he lodged the FIR at the police station. He told

that the FIR was written by a para legal volunteer pursuant to his request.

During his cross examination, he was asked as to why he did not go

to the police station while he was bringing his daughter back home during the

night of the incidence. He answered to the cross examiner that on the very night

police was informed and police also visited the house of the accused in a police

vehicle. The PW stated that he lodged the FIR subsequently. The cross examiner

also made several suggestions to the PW. It was suggested to the PW that he did

not meet his daughter on 08.01.2019 and his daughter never told him that her

modesty was outraged by the accused and the FIR was not written by a para legal

volunteer. The PW denied all these suggestions.

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[20] PW-6 is the victim. She told the trial Court in her examination-in-

chief that she started staying in the house of the accused on rent from

31.12.2018. On 08.01.2019 at about 9/9.30 pm, accused knocked on her door.

Accused asked her from outside whether she had taken her diner. She replied that

she had finished her diner. Again the accused told that if required he would bring

some tiffin for her. Then he left. After a while he came back and again started

knocking on her door. When she opened the door he stepped inside and sat in the

room. Suddenly, he touched her chest and neck. For better appreciation of her

evidence, it would be appropriate to reproduce exactly what she told the trial

Court.

"**** Then he asked me if I had taken supper. I told him that I already had my food but he told me that if I needed tiffin then he will bring tiffin for me. After wards, he left. After some time he again knocked in the door of my room and when I opened the door, he came inside and set inside the room. Thereafter he touched on my chest and neck and due to this the chain on my neck got torn. I raised hue and cry and at that moment he went out of the room. Then I informed my father about the incident over phone and he came. After the incident police produced me before a lady judge and she recorded my statement as per my version and thereafter, she read over the statement to me. Finding it correct, I signed in the statement recorded by the Magistrate. This is my signature in the statement recorded by the Magistrate. The statement of the witness recorded as per Section. 164(5) of Cr. PC is marked as Exhibit-3 on identification by the witness.****"

In her cross examination she stated that on the following day police

visited the rented house where she was studying. She could not remember exactly

at what time police came to there. She, however, told the court that at that time

police also examined her and she did not tell police that accused wanted to know

as to whether she had taken her diner. She said that she did not also tell police

that accused offered her tiffin. The cross examiner made a bundle of suggestions

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to her. It was suggested to her that accused did not knock on the door of her

room and accused did not even went inside her room. It was also suggested on

behalf of the accused that accused did not touch her neck and chest. Finally, it

was suggested to the PW that since many persons used to visit her in her rented

room, accused raised objection for which she made a false accusation against him.

The PW denied all these suggestions.

[21] PW-7 is the mother of the victim who only told in her examination in

chief that on 8.1.2019 at around 9/9.30 pm an incident occurred in the house in

which her daughter was staying on rent. She did not tell anything more about the

occurrence. Trial court recorded her demeanor in the following words:

"****The witness appears to be unwilling to explain anything about the incident that occurred to her daughter on 08.01.2019 at around 9 p.m to 9.30 p.m, even though she was repeatedly asked about this by the Ld. APP.****"

In her cross examination she denied the suggestion of the defence

counsel that nothing happened to her daughter.

[22] PW-8 is a neighbour of the accused, he told the court in his

examination in chief that after he came to know from PW-3 over telephone that

the accused misbehaved with his tenant, he went to the house of the accused and

saw that the victim locked her room from inside. When the PW and those who

went there after the occurrence requested her to open the door, she opened the

door of her room. She was looking very frightened. She told that accused entered

into her room and struggled with her. She, however, pushed him out and closed

her door. The girl was then handed over to her father. Many suggestions were

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made to the witness by the cross examiner. All those suggestions were denied by

the PW.

[23] PW-9 simply stated that PW-3 informed him about the occurrence

and wanted the phone number of Binoy and Asish from him. He gave their phone

numbers to PW-3.

[24] PW-10 is the Investigating Officer who asserted that the whole

investigation was carried out by her. During investigation, adequate evidence

supporting the charge against the accused having been found she laid charge

sheet against the accused for having committed offence punishable under Sections

448, 427 and 354 IPC.

In her cross examination, the PW stated that she arrested the

accused from his house on 09.01.2019. She also stated that she never met the

victim and her father before registering the case.

[25] PW-11 is the Judicial Magistrate of the First Class of Udaipur who

recorded the statement of the victim under Section 164 (5) Cr. P.C. The PW

identified the statement which was recorded by her. Evidence of the PW is

reproduced hereunder:

"****On 10.01.2019 I was posted as Judicial Magistrate First Class at Udaipur. On that day I recorded the statement of the victim as per Section 164(5) of Cr. P.C.

Victim stated in her statement recorded by me that "on 08.01.2019 at 9.30 pm in Chandrapur Colony she was studying in her rented house. The owner of the house was Punendra Aich, a short statured man with dark complexion started banging on her door and so, she opened the door. Then he asked her whether she had her dinner or not, to which she stated that she has already ate it but he insisted on getting tiffin for her. After a while he returned and entered inside her room and touched on her neck and broke her gold chain and also Crl. Rev. P. No.03/2021.

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touched on her body. So, she started crying and seeing crying he left. After he left, she called her father and informed the matter to him and then he arrived on the next date and along with him she went to the police station and lodged a complaint against him.****"

[26] Section 354 IPC provides punishment for assault or use of criminal

force to any woman, intending to outrage or knowing it to be likely that the

accused will thereby outrage the modesty of e woman. In the instant case, most

of the witnesses met the victim almost immediately after the occurrence. It would

appear from their evidence that none of them gave a parroted version. The

inconsistencies appearing in their statements are insignificant. PW-8 who was a

neighbour of the accused categorically told the trial Court that when he met the

victim after knowing about the occurrence she was looking very frightened. She

told the PW that accused entered into her room during night and struggled with

her. She somehow pushed him out and closed the door. Statement of the victim is

also quite convincing and trustworthy. Initially, the accused inquired as to whether

she had taken her supper. When she affirmed that already she had taken her

dinner, accused left. After a while he came back and knocked at the door of her

room. When she opened the door, he stepped inside and outraged her modesty by

touching different places of her body. The victim gave almost same statement

before the Judicial Magistrate who recorded her statement under Section 164(5)

Cr. P.C. Her father and other witnesses who met her immediately after the

occurrence also supported the prosecution case by giving very convincing and

trustworthy evidence. The defence version projected by the accused that she

used to bring young people to her room does not gain ground because the victim

was staying in his house on rent only from 31.12.2018 and the incident occurred

a week thereafter on 08.01.2019. Obviously, the victim came from a different Crl. Rev. P. No.03/2021.

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locality. Therefore, the defence case that she used to bring outsiders to her room

against the objection of the accused was quite unlikely because it was improbable

that in a different locality she would have developed acquaintance with outsiders

within such a short spell of time.

[27] 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.

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

decision in Vidyadharan Vrs. 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 Vrs. 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 very relevant consideration, but its absence is not

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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

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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."

[29] In the present case, it is very clear from the evidence of the victim

as well as from the evidence of other witnesses that the accused intending to

outrage her modesty entered into her room and touched different places of her

body when the girl was alone in her room at round 9 „O‟ clock in the night. The

victim immediately reacted to the incidence by pushing out the accused from her

room and calling her father and informing the incidence to him. She also left the

house of the accused immediately after her father appeared there. The sequence

of events and evidence on record have clearly established the prosecution case

beyond reasonable shadow of doubt.

[30] Having examined the case in the light of the judgments cited to

supra, this Court is of the view that in so far as the conviction of the accused

under Section 354 IPC is concerned, there is no ground to interfere with the

impugned judgment. Resultantly, the conviction of the petitioner under Section

354 IPC is affirmed.

[31] Minimum sentence provided under Section 354 IPC shall not be less

than one year which is extendable up to five years with fine. Taking note of the

provision, the learned trial Judge after hearing the petitioner on sentence,

sentenced him to suffer rigorous imprisonment (R.I) for a term of one year with

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fine of Rs.5,000/- with default stipulation. But the learned Sessions Judge by

modification of sentence reduced the sentence from one year R.I to R.I for six

months with fine. Learned Sessions Judge relied on the judgment of this High

Court in Nakul Sarma Vrs. State of Tripura; reported in (2019) 1 TLR 581

for reducing the sentence of the petitioner. In the case of Nakul Sarma (supra)

the petitioner was in appeal before the High Court against his conviction and

sentence under the Protection of Children from Sexual Offences Act, 2012. He was

sentenced to R.I for five years and fine of Rs.10,000/- with default stipulation by

the trial Court. High Court came to the conclusion that his conviction under Section

8 of the POCSO Act was not maintainable firstly, because the fact that she was a

minor was not proved and secondly, because the ingredients Section 7 of the

POCSO Act were not proved for his conviction under Section 8 of the POCSO Act.

The High Court however, found materials for his conviction under Section 354 IPC

and accordingly converted his conviction under Section 354 IPC and sentenced him

to R.I for six months with fine of Rs.5,000/- with default stipulation. This court

cannot sit over the judgment of a co-ordinate bench of this Court. However, in the

case of Nakul Sarma (supra) no law was laid down by the High Court on the

issue of sentencing under Section 354 IPC. Apparently, the learned Sessions Judge

committed an error by reducing the sentence of the convict petitioner from one

year to six months whereas law prescribes that for offence punishable under

Section 354 IPC minimum term of sentence shall not be less than one year. The

Apex Court in the Case of State of Madhya Pradesh Vrs. Vikram Das:

reported in (2019) 4 SCC 125 has held that where minimum sentence is

provided, court cannot impose lesser sentence. Observation of the Apex Court in

the said judgment is as under:

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"8. In view of aforesaid judgments that where minimum sentence is provided for, the Court cannot impose less than the minimum sentence. It is also held that provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence."

[32] In these circumstances, this court is not powerless to enhance the

sentence in exercise of power of revision under Section 397 read with Section 401

Cr. P.C. In the case of Sahab Singh Vrs. State of Haryana; reported in (1990)

2 SCC 385 it was held that the High Court, even if no appeal is filed by the State

for enhancement of sentence, can exercise suo motu power of revision under

Section 397 read with Section 401 Cr. P. C. But before the High Court exercises

revisional jurisdiction to enhance the sentence, it is imperative that the convict is

put on notice. In paragraph-4, in the case of Sahab Singh (supra) the Apex Court

held as under:

"4. Section 374 of the Code of Criminal Procedure ("the Code" hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub- section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Sections 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on Crl. Rev. P. No.03/2021.

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the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself 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 any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386,389, 390 and 391 of the Code. Sub-section 2 of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defence. Sub-section 4 next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub- section 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court."

[33] Same principles were reiterated by the Apex Court in the Case of

Govind Ramji Jadhav Vrs. State of Maharastra; reported in (1990) 4 SCC

Crl. Rev. P. No.03/2021.

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718 and also in the case of Surendra Singh Rautela Vrs. State of Bihar;

reported in (2002) 1 SCC 266.

[34] In view of the above, this Court is of the view that convict petitioner

should be given an opportunity of being heard on the question of modification of

sentence either in person or through his advocate. Notice be issued to the convict

petitioner through his advocate as to why his sentence should not be enhanced to

rigorous imprisonment for one year with fine which is the minimum sentence

provided under Section 354 IPC. A copy of this judgment shall be annexed to such

notice. Notice shall also be issued to the State along with a copy of this judgment

returnable within two weeks. Appropriate sentence shall be awarded after hearing

the convict petitioner on this issue.

JUDGE

Dipankar

Crl. Rev. P. No.03/2021.