Sri Nithuram Tripura vs The State Of Tripura
2022 Latest Caselaw 851 Tri

                                  Page 1 of 7




                     HIGH COURT OF TRIPURA
                        A_G_A_R_T_A_L_A
                      Crl. Rev. P. No. 50 of 2022

1.    Sri Nithuram Tripura, son of late Ananda Tripura of Batisha
      Colony, P.S. P.R. Bari, District: South Tripura.

                                                          .....Petitioner

                              -V E R S U S-

1.    The State of Tripura.
                                                        ..... Respondent

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD

For Petitioner(s) : Mr. A. Acharjee, Advocate.

For Respondent(s)         :       Mr. S. Debnath, Addl. P.P.
Date of hearing and delivery of
judgment and order        :       13.09.2022
Whether fit for reporting :       NO


                    JUDGMENT & ORDER [ORAL]

Heard Mr. A. Acharjee, learned counsel appearing for the petitioner. Also heard Mr. S. Debnath, learned Additional Public Prosecutor, appearing for the respondent-State.

[2] By means of filing this revision petition under Section-401 of Criminal Procedure Code read with Section-397 of the said Code for examining the legality, validity and propriety of the impugned judgment and order dated 06.12.2019 passed by the learned Sessions Judge, South Tripura, Belonia in connection with Crl. Appeal No.09 of 2019, whereby and whereunder, the learned Appellate Court has dismissed the appeal upholding the order of conviction and sentence dated 25.03.2019 passed by the learned Chief Judicial Magistrate, South Tripura, Belonia in connection

with Case No.PRC 350 of 2014 wherein, the learned trial Court sentenced him under Section-448 of IPC to suffer RI for 3 months and further sentenced him under Section-354 of IPC to suffer IR for one year and to pay a fine of Rs.3,000/- with default stipulations. Both the sentence shall run concurrently.

[3] The fact of the case is that, on 14.07.2014 at about 4.00pm the wife and child of the informant were clone in the house at Batisha Colony and taking advantage of the same, the accused-person entered into their dwelling hut and pushed the wife of the informant on the ground and torn her wearing apparels and outraged her modesty. The wife of the informant cried out for help, but the accused person pressed her mouth and applied force upon her. Hearing her hue and cry one Tapan Tripura came to the spot and before he could enter into the room of the victim, the accused- person immediately fled away from there and thereafter she narrated the incident to her husband and the local villagers and thereafter, the informant lodged the case.

[4] On the basis of said FIR, police registered P.R. Bari P.S. Case No.75 of 2014 under Sections-448/354 of IPC and after investigation finding prima facie case, Inspector Ashis Kr. Das submitted charge sheet dated 31.07.2014 vide C/S No.48 of 2014 under Sections-448/354 of IPC against the accused-person.

[5] After taking cognizance and supplying the prosecution copies to the accused person, charges under Sections-448 and 354 of IPC have been framed against the accused person to which, he pleaded not guilty and claimed to be tried.

[6] To substantiate the charges levelled against the accused- person, the prosecution has examined as many as seven witnesses. Thereafter, the accused-person was examined under Section-313 of Cr. P.C. at which he denied the incriminating materials and also denied to adduce defence witness.

[7] After hearing the parties and perusal of the evidence on record and also the observation made by the learned Court below, the learned Appellate Court has observed as under:

"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 stands dismissed. The convict-appellant is hereby directed to surrender before the learned trial Court within one month from today to undergo the sentence."

[8] Being aggrieved by and dissatisfied with the impugned judgment and orders passed by the learned Courts below, the present petition has been preferred by the petitioner.

[9] In support of the case of the petitioner Mr. A. Acharjee, learned counsel appearing for the petitioner has submitted that both the courts below have erred in the matter of correctness, legality and propriety while passing the judgments and sentence to the present petitioner. The Courts below committed serious error of law by conducting the trial and consequences there too, the conviction have been recorded.

[10] Mr. Acharjee, learned counsel has contended that the Courts below by way of non-reading, misreading and improper appreciation of evidence and the facts and circumstances of the case arrived at absolutely illegal, wrong and unwarranted findings causing grave miscarriage of justice to the petitioner.

[11] The learned Courts below ought to have held that the alleged offences of the convict-petitioner, alleged participation of the petitioner in the commission of the alleged offence are absolutely doubtful and on the basis of such evidence, the petitioner could not be legally convicted for the alleged offence. He has further submitted that the findings of the Courts below are not tenable because the learned Courts below did not discuss a single word of the cross-examination of the complainant witnesses and the defence of the accused-person. The learned Courts below misconceived and misunderstood the legal position of law and as such, came to a wrong finding convicting the petitioner.

[12] He has averred that in para-14 of the judgment, the learned Appellate Court has clearly stated that "in the prosecution evidence it is clearly proved that the accused had access in that house and he entered into the house. His entry though may not be illegal but he unlawfully remained there when he made an illegal approach to the victim enquiring as to why one of the breasts was smaller and another was bigger." But the learned Courts below did not consider the same.

[13] The learned Courts below did not consider the cross examination of PWs.1, 2 and 3 who, are the vital witnesses. Hence, the findings of the learned Courts below liable to be set aside and the ends of justice.

[14] PW-4, Sri Tapan Tripura has stated that on 14.07.2014 at about 4.00pm he was coming out to the road and at that time, he heard hue and cry from the house of the informant and when he was coming out he saw that accused person was coming out from the house of the informant. Then, the victim reported to him that the convict-petitioner had caught her person on her chest and later the informant informed to the villagers about

the incident. So PW-4 duly corroborated the victim and supported the evidence of the victim.

[15] But, during cross examination this witness has stated as follows: "at that time the wife of Maijhungrai namely, Smt. Sumadhari Tripura did not tell me anything and I also did not ask her anything. Later, in the evening I came to learn that the said Nidhuram Tripura had entered into the dwelling hut of Maijhungrai and outraged the modesty of his wife Sumadhari Tripura by touching her on the chest".

[16] It implies that details of the incident was not disclosed to him by that witnesses since during examination-in-chief he supported the fact that the victim told him that Nidhuram had caught her person on her chest and that statement he made in corroborating the evidence of PW-2. During cross-examination defence also drew attention to another statement of the witness given to the police wherein, he stated that "at that time, I thought that quarrel was going on between husband and wife and for that reason Nidhuram Tripura had gone out of their house". But later on the witness clarified in the evidence that he had heard about the incident form the victim and also from his elder uncle.

[17] The charge as framed under Section-448 of the IPC that he committed house trespass by entering into the building/hut in possession of the informant and outrage the modesty of the wife of the informant. To prove the charge, prosecution examined as many as seven witnesses including the informant. For the purpose of reference, Section-448 of the IPC may be extracted hereunder:

"Section 448: Punishment for house-trespass.--Whoever commits house- trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

[18] In view of the statements made by the witnesses, this Court is of the considered view that the convict-petitioner is a neighbour of the complainant. He is not just a stranger who, taking the advantage that no one in the house had entered into the house and tried to outrage the modesty of the victim. Here the accused-person is known to all and more particularly, he was a neighbour of this locality. He is not just an unknown person to them. As such, Section-448 of IPC does not attract in the present case in hand.

[19] In view of above discussion and the evidence of the witnesses more particularly PW-4, Sri Tapan Tripura, this Court finds that the version of the complainant and Tapan Tripura is an improved version comparing to the complaint and since the complaint itself is not specific for attracting Section-354 of IPC and keeping in mind that the convict- petitioner has already suffered three months jail custody, this Court is of the considered opinion that the accused-petitioner shall be released setting aside the judgment of the Courts below. Thus, the judgment and order passed by Courts below stands set aside. The present petitioner shall be released forthwith, if not warranted in any other cases.

[20] The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case against the petitioner. It is settled proposition of law that the charge framed against the accused-person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected

from a normal person. This Court has no hesitation to say that in the revision, appreciation of the factual issues is not permissible.

[21] In terms of the above, the present petition stands allowed setting aside the findings arrived at by the learned courts below. As a sequel, miscellaneous applications pending, if any, shall stand closed.

JUDGE

A.Ghosh