Kallyanjoy Reang vs State Of Tripura

The appellant, by means of filing the present appeal has challenged the judgment of conviction and order of sentence dated 10.05.2018 passed by the learned Sessions Judge, North Tripura, Dharmanagar in connection with case No. S.T. (T-1) 15 of 2015 wherein the appellant has been convicted under Section 323 of the IPC and sentenced to suffer rigorous imprisonment for 1(one) years and to pay a fine of Rs. 1,000/- with default stipulation and also to suffer rigorous imprisonment for 3(three) years and to pay a fine of Rs. 5000/-with default stipulation under Section 354B of the IPC.

Heard Mr. B. Banerjee, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the respondent.

The prosecution case, briefly stated, is that one complaint was lodged by Subendra Reang stating inter alia that on 03.02.2015 at about 8/9 pm, his wife i.e. the victim herein, went to a fair at Khedacherra and, at that time Kallyanjoy Reang, the appellant herein along with Bilatrai Reang forcibly took his wife to a nearby jungle of Khedacherra town hall and committed rape upon her and also had assaulted her.

On receipt of the complaint (Exhibit-1), the Officer-in-Charge of Khedacherra police station had registered a case against the appellant and Bilatrai Reang under FIR No. 2015 KDC 001 dated 06.02.2015 under Section 376(D) of the IPC. Being endorsed, the investigating officer visited the place of occurrence, recorded the statement of the available witnesses including the victim at Dharmanagar hospital, arrested the accused-persons who were also medically examined. The investigating officer also seized the blood samples, vaginal swab, urine and nail of the victim. The investigating officer also had arranged the examination of the victim under Section 164(5) Cr.P.C. and her statement was accordingly recorded by the SDJM, Kanchanpur. After completion of investigation, the investigating officer submitted charge-sheet against the appellant and another accused, namely, Bilatrai Reang was a juvenile in conflict.

Being committed, the learned Sessions Judge, North Tripura, Dharmanagar had framed charge against the appellant under Section 376(D) of the IPC, to which the appellant pleaded not guilty and claimed to be tried.

To substantiate the charges, the prosecution had examined 12 witnesses and introduced some documents including medical examination report of the victim (Exhibit-9 series) and the injury report of the victim (Exhibit-4). After completion of recording of prosecution evidences, the accused person was examined under Section 313 Cr.P.C. where he repeated the plea of his innocence. After hearing argument of both the parties, the learned Sessions Judge convicted the appellant under sections 323/354B IPC and sentenced him as aforestated. Hence, the appellant has preferred this appeal.

Mr. Banerjee, learned counsel appearing for the appellant has contended that the judgment of conviction passed against the appellant is not sustainable in law. The prosecution has miserably failed to fulfill the essential requirements to establish the charge against the appellant. According to Mr. Banerjee, learned counsel, the medical report does not support the story of rape, as projected by the prosecution. Learned counsel has further contended that though the incident, if any occurred on 03.02.2015 but, the complaint was lodged after a delay of 3 days i.e. on 06.02.2015. Further, he has contended that the medical examination report of the victim clearly states that the victim was not having any sign of recent penetration. In this situation, learned counsel for the appellant has submitted that the conviction of the appellant for committing offence punishable under Section 323/354B of the IPC should not sustain.

On the other hand, Mr. S. Ghosh, learned Additional PP has supported the finding as returned by the learned Sessions Judge while declaring conviction and sentence upon the appellant.

In view of the aforesaid submission, let me have a survey of the evidence and the materials brought on record.

PW-1, Subendra Reang is the complainant. In his examination-in-chief, he deposed that he came to know about the incident on the following morning i.e. on 04.02.2018 at about 4/5 a.m. from his wife that on 03.02.2015 at about 8/9 pm near Khedachara Town Hall she was forcefully raped by the appellant and Bilatrai Reang and when she refused and did not allow them to commit rape, they had mercilessly caused hurt to her. PW-1 has further deposed that he found injuries on her face and bite injury on her person. He thereafter took her to Khedechara PHC from where she was referred to Dharmanagar hospital. PW-1 has also stated that due to treatment of his wife, there was delay in lodging the FIR and the FIR was drafted by one Purnajoy Reang, maternal uncle of his wife, as per his dictation. PW-1 also stated that the appellant is known to him.

In cross-examination PW-1 has stated that the appellant and Bilatrai Reang were earlier known to his wife.

PW-2, Purnajoy Reang is a hearsay witness. He is the maternal uncle of the victim. He deposed that as per facts supplied by the husband of the victim i.e. PW-1, he had drafted he ejahar. PW-2 also has stated that the FIR was submitted in the Dharmanagar hospital complex.

In his cross-examination, nothing material was elicited.

PW-3, Sabita Reang, is the victim. She deposed that about one and half years back one day at about 8/9 pm she alone was returning home from Khedachara Anandamela towards Khedachara market and when she came infront of one shade of the bazaar two tribal boys namely Kalyanjoy Reang i.e. the appellant and Bilatrai Reang had wrongfully detained her and mercilessly caused hurt on her mouth and also had bitten her and also removed her wearing apparels. She further deposed that thereafter she became senseless and could not say what they did with her and in the early morning when she regained her sense she went to her home and reported the incident to her husband. She has also deposed that the accused left her totally in naked condition for which she believes that they might have committed rape upon her in an unconscious condition. She has also deposed that she could identify the accused persons as there was some electrical light. She also has deposed that she knew the accused persons.

In his cross-examination, PW-3 has stated that there is no house near by the place of occurrence. She has also stated that she had shown the place of occurrence to the police.

PW-4, Smt. Minakshi shil, is a Constable of police. In her examination-in-chief, she has stated that on 06.02.2015 at Dharmanagar hospital she has recorded the statement of the victim under Section 161 Cr.P.C.

PW-5, Sri Badal Kumar Reang is a hearsay witness. He deposed that one day a female knocked his door from outside but he did not open the door and could not see the face of the female. He has also deposed that she has stated that she was tortured by her husband. However, the said witness was declared hostile by the prosecution.

PW-6, Bajuti Reang is a hearsay witness. He deposed that about one and half years back at night Subendra Reang (PW-1) came to his house and inquired about his wife. PW-6 further deposed that on the following day he came to know that she was tortured and assaulted. However, this witness was declared hostile by the prosecution.

In cross examination, this witness has stated that mother of the victim is his cousin and Subendra i.e. PW-1 always used to torture his wife Sabita in a state of intoxication.

PW-7, Dr. Prasenjit Chakma prepared the injury report. In his deposition, PW-7 has stated that on 04.02.2015 at about 9.30 am he has attended Sabita Reang who was admitted with history of trauma face following assault by her husband‟s colleague. PW-7 has identified his signature on the injury report which is marked as Exhibit-4. PW-7 has also deposed that his report does not bear any dispatch number of the hospital and it was not issued as per any printed proforma. PW-7 also deposed that there was swelling in both cheek and both eyebrows and congestion over the conjunctiva of right eye and bleeding in both nostrial and also there was tenderness over whole face.

PW-8, Delowar Hossain is a seizure witness. He deposed that on 19.02.2015 he was posted as Khedacherra PHC as Pharmasist and in his presence police seized the blood sample of Billatrai Reang.

PW-9, Dharmendra Reang, is a hearsay witness. He has deposed that the victim is his youngest sister. He came to know about the incident on the next day from the husband of the victim i.e. PW-1 who informed him that his wife was assaulted at Khedacherra market. PW-9 also deposed that on query, his sister i.e. the victim told him that she was assaulted by the appellant and Billatrai Reang and after assaulting he they also naked her and by pressing her mouth assaulted her due to which she became senseless and when she regained her sense, she found her injured and totally naked,

PW-10, Humbarung Reang is the father of the victim. In his examination in chief, this witness has deposed that on receiving information, he along with his son went to Dharmanagar hospital where his daughter reported that Billatrai Reang and the appellant by pressing her mouth took her in a jungle and assaulted her and raped her and left her in naked condition and in the next morning when she regained her sense she went home.

PW-11, Totan Debbarma is a seizure witness. He deposed that on 19.02.2015 at about 9.00 hours he was on duty as Constable at Khedacherra PS and he has signed on the seizure list in respect of seizure of blood sample of Billatrai Reang.

PW-12, Sri Padmasen Chakma is the investigating officer who has investigated the case. He has recorded the statement of the witnesses including the victim, collected the samples of the victim. PW12, in his deposition has stated that he has visited the place of occurrence along with the husband of the victim and he prepared the handsketch map of the place of occurrence along with the index and arrested both the accused persons and arranged for their medical examination. PW-12 also has deposed that the victim was admitted in the hospital following complaint of trauma on her face and physical assault by her husband‟s colleague. PW-12 also deposed that he has collected the report of the Medical Officer wherein in the opinion column there was no recent injury mark on the private parts of the victim and her hymen was absent and clean vaginal margin and vaginal canal could accommodate two fingers easily and posterior vaginal fornixlax and absence of any spermatozoa. The witness also deposed that the medical officers opined that the victim was not having sign of recent penetration.

Now, having due regard to the submission of the learned counsel appearing for the parties to the lis, and the evidence relied upon the prosecution as well as by the learned Sessions Judge, it is necessary to carefully and cautiously examine the evidentiary value of the prosecution witnesses coupled with the medical evidence.

To examine the fact in issue, that there was penetrative sexual assault upon the victim, I have carefully perused her deposition. She has deposed that the appellant along with another had forcefully detained her and caused hurt to her and also removed her wearing apparels and, thereafter, she became senseless and when she regained her sense she found herself to be in naked condition from which she could assume that she had been raped by the appellant and another in an unconscious condition. The victim in her evidence only has stated that the appellant and another had „raped‟ her. Rape is a legal terminology. Section 375 of the IPC defines the word „rape‟. It reads as under:

"375. Rape- A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a child or makes the child to do so with him or any other person; or

(c) manipulates any part of the body of the child so as to cause penetration into the vagina, urethra,anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so with him or any other person, under the circumstances falling under any of the following seven descriptions-

First- Against her will,

Secondly- Without her consent.

Thirdly- With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt,

Fourthly- With her consent, when the man known that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married,

Fifthly- With her consent when, at the time of giving such consent by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent,

Sixthly- With or without her consent, when she is under eighteen years of age,

Seventhly- When she is unable to communicate consent".

In State of Madhya Pradesh vs. Basodi, reported in (2009) 12 SCC 318, the Apex Court explaining the definition of „rape‟ have observed thus:-

"5. 7.The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for `Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. `Rape' is defined in Section 375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is `the ravishment of a woman, without her consent, by force, fear or fraud', or as `the carnal knowledge of a woman by force against her will'. `Rape' or `Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co. Litt. 123-b); or as expressed more fully,' rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will' (Hale PC 628). The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of rape, `carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's "Criminal Law" 9th Ed. p.262). In `Encyclopedia of Crime and Justice' (Volume 4, page 1356) it is stated "......even slight penetration is sufficient and emission is unnecessary". In Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order".

I have also carefully visited the injury reports (Exhibit-4) of the victim, as opined by the Medical Officer. The Medical Officer who had attended the victim had observed that there was swelling over both cheeks and eye brow. He has also opined that there was congestion over the right eye and bleeding at the nostrils.

I have also gone through the medical examination report of the victim (Exhibit-9). The Medical Officer who prepared the medical examination report of the victim has opined as follows:

"She is not having sign of recent vaginal penetration but there is sign of penetration in the past on a number of occasion because of the following reasons:

(1) No recent injury mark on private part.

(2) Hymen absent and clean vaginal margin

(3) Vaginal canal accommodate two fingers easily and posterior vaginal fornix lax;

(4) Absence of spermatozoa"

If the medical examination of the victim is taken conclusively, it would be apparent that there was no penetration upon the victim. In order to constitute penetration, there must be evidence, clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the victim, no matter how little. Even a slight penetration in vulva region is sufficient to constitute the offence. Similarly, even a slight penetration in labia majora or labia minora is sufficient to constitute the offence of rape. Complete penetration of penis with emission of semen and rupture of hymen is not necessary. So, from the very beginning the victim had tried to develop the story implicating the appellant with a serious crime.

I now proceed to test the integrity of the victim and the complainant. I have noticed that the victim as PW-3 in her examination-in-chief has stated that the appellant had detained her and caused hurt to her mouth and also bitten her and removed her wearing apparels and thereafter she became senseless, but she cannot say whether she was raped or not as she was in unconscious condition. She in her cross-examination has stated that she had taken the police to the place of occurrence and also that since she did not get her wearing apparels and found her totally naked, she directly went home covering a distance of 40 cubits from the place of occurrence. The complainant as PW-1, has stated in his examination in chief that his wife i.e. PW-3 was forcefully raped by the appellant and another. The statement of the victim recorded under Section 164(5) Cr.P.C. also reveals that the victim had stated that she was forcibly raped by the appellant and when she tried to resist them, she was mercilessly assaulted and they fled away after keeping her in naked condition. Now, if we take the examination of PW-1 and PW-3 conjointly with the medical examination reports, it would clearly put the integrity of the PW-1 and PW-3 into question since, the medical examination report does not constitute the commission of rape. Moreso, PW-5 and PW-6 in their examination in chief had deposed that the victim was assaulted by her husband but, both the witnesses had been declared hostile by the prosecution. PW-2 is the scribe who drafted the ejahar as per dictation of PW-1. PW-9 and PW-10 though are the relatives of the victim but they are the hearsay witnesses. The victim as well as her husband alongwith PW-9 and PW-10 have categorically stated that she was "raped" by the appellant. As I said earlier, that „rape‟ is a legal term which is said to occur when certain statutory requirements are fulfilled. Moreover, the medical examination report does not support the commission of rape upon the victim. In this circumstance, there is enough space to doubt the integrity and trustworthiness of the statement of the victim. I find no ingredient of „rape‟ or „penetrative sexual assault‟ upon the prosecutrix caused by the appellant. Proceeding further, the victim had stated that she was left in naked condition by the appellant but, no wearing apparel has been seized by the police either from the place of occurrence or from the possession of the appellant.

Appreciating the evidences, on record, it is established that the complainant (PW-1) and the victim (PW-3) apparently had corroborated the fact of assault and outraging the modesty of the victim. The said evidence has also been corroborated by the deposition of PW 9 and PW-10, though they are the hearsay witnesses. However, from the evidence of the witnesses coupled with medical examination report of the victim, I find the prosecution has been able to prove the ingredients of Section 354 of the IPC, which are reproduced hereunder:

"354. Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.

In the ultimate analysis of the entire episode and the facts and circumstances thereof, the conviction and sentence of the appellant under Section 354B/323 of the IPC cannot sustain and, accordingly, the conviction and sentence as returned by the learned Sessions Judge under Section 354B IPC is set-aside and quashed. The appellant is acquitted from the charge of committing offence under Section 354B IPC. However, in my opinion, there is enough evidence to convict the appellant under Section 354 of the IPC. Therefore, the offence may be reduced to section 354/323 of the IPC.

At this juncture, it is brought to my notice a decision of this court in Pulin Bihari Roy vs. State of Tripura, (2012) 6 GLR 138 : MANU/GH/0648/2012 : 2012(5) GLT 58, wherein, the learned Single Judge after taking into account the provision of law under Section 222 of the Code of Criminal Procedure has held that when a charge under Section 376 of IPC has been framed, in that case, the court cannot convert the sentence into Section 354 IPC for the reason that no charge has been framed under Section 354 IPC. The learned Single Judge has further observed that "Composition of offence under Section 354 of IPC is different from the formation of the offence under Section 376 of IPC and hence, the former cannot be regarded as a minor offence vis-à-vis the latter."

I have seen, while arriving at this finding the learned Single Judge has relied upon the observation made by the Supreme Court in the case of Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 and the learned Single Judge had particularly relied upon para 16 of the judgment, which reads as under:

"16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence."

I have given my thoughtful consideration to the decision of the learned Single Judge of this Court, passed in Pulin Bihari Roy(supra). I have noticed that while deciding the case of Pulin Bihari Roy(supra), the Court was not noticed about the decision of the Apex Court in the case of Tarkeshwar Sahu vs. State of Bihar(now Jharkhand), (2006) 8 SCC 560, where the Apex Court had faced with similar situation. It was also a case where the trial court convicted the appellant under Sections 376/511 of IPC and the appeal being preferred, the High Court had dismissed the appeal.

On scrutiny of the evidence on record, the Apex Court came to the finding that the essential ingredients of Section 376 of IPC were not fulfilled and having found the ingredients of Sections 354 and 366 of IPC, the appellant was convicted under Sections 354 and 366 of IPC and awarded sentence accordingly. At para 8 of the decision of Tarkeshwar Sahu(supra), the Supreme Court observed thus:-

"8. Looking to the gravity of the offence, we have ourselves examined the entire evidence and documents on record. Even on close scrutiny and marshalling of evidence, we could not persuade ourselves to take a different view than that taken by the courts below as far as the conviction of the appellant is concerned. In our considered view, the prosecution version is both truthful and credible. We are clearly of the view that the appellant had forcibly taken the prosecutrix to the gumti to outrage her modesty but before he could do anything, on raising an alarm by the prosecutrix, the father of the prosecutrix and other villagers had assembled there and she was rescued."

Then, the Supreme Court had considered the definition of „rape' under Section 375 of IPC. Thereafter, at paragraphs 22, 23, 24 and 25, the Supreme Court observed thus:

"22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections 376/511 IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no question of penetration. In the absence of any attempt to penetrate, the conviction under Sections 376/511 IPC is wholly illegal and unsustainable.

In the instant case, the accused has been charged with Sections 376/511 IPC only. In the absence of charge under any other section, the question now arises-whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertaining to forcibly outraging the modesty of a girl. In a situation like this, we would like to invoke Section 222 of the Code of Criminal Procedure, which provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted of the minor offence, though he was not charged with it. Section 222 CrPC reads as under:

"222. When offence proved included in offence charged.-

(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.

(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."

In this section, two illustrations have been given which would amply describe that when an accused is charged with a major offence and the ingredients of the major offence are missing and ingredients of minor offence are made out then he may be convicted for the minor offence even though he was not charged with it. Both the illustrations given in the said section read as under:

"(a) A is charged, under Section 407 of the Penal Code (45 of 1860), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under Section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said Section 406.

(b) A is charged, under Section 325 of the Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under Section 335 of that Code."

In Lakhjit Singh v. State of Punjab [1994 Supp (1) SCC 173] this Court had an occasion to examine the similar question of law. In this case, the accused was charged and tried under Section 302 of the Penal Code but the ingredients of Section 302 were missing but the ingredients of Section 306 were present, therefore, the Court deemed it proper to convert the conviction of the appellant from Section 302 to Section 306 IPC. In this case, it was urged that the accused cannot be tried under Section 306 IPC because the accused were not put to notice to meet a charge under Section 306 IPC and, therefore, they are prejudiced by not framing a charge under Section 306 IPC; therefore, presumption under Section 113-A of the Evidence Act cannot be drawn and consequently a conviction under Section 306 IPC cannot be awarded. According to this Court, in the facts and circumstances, Section 306 was attracted and the appellants' conviction under Section 302 IPC was set aside and instead they were convicted under Section 306 IPC."

Further, in Tarkeshwar Sahu(supra), the Supreme Court had taken into account the decision of the Apex Court in Shamnsaheb M. Multtani(supra) on which the learned Single Judge of this Court had relied upon. The Supreme Court observed thus:

"26. A three-Judge Bench of this Court in Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577] had an occasion to deal with Section 222 of the Code of Criminal Procedure. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion is in paras 16, 17 and 18 of the judgment, which read as under: (SCC p. 584)

"16. What is meant by „a minor offence‟ for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-à-vis the other offence.

The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC (husband or relative of husband of a woman subjecting her to cruelty). As the word „cruelty‟ is explained as including, inter alia, „harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand‟.

So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?"

After considering the case of Shamnsaheb M. Multtani(supra), the Supreme Court in the case of Tarkeshwar Sahu(supra) observed thus:

"27. On careful analysis of the prosecution evidence and documents on record, the appellant cannot be held guilty for committing an offence punishable under Sections 376/511 IPC. According to the version of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW 1 Ram Charan Baitha and other co-villagers residing in the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrix came out of the gumti. In this view of the matter, no offence under Sections 376/511 IPC is made out."

Having held so, the Supreme Court held that:

"28. In this view of the matter, it has become imperative to examine the legal position whether the offence of the appellant falls within the four corners of other provisions incorporated in the Penal Code relating to outraging the modesty of a woman/girl under Sections 366 and 354."

On evaluation of the entire evidence and materials on record, the Supreme Court in Tarkeshwar Sahu(supra) invoked the provisions of Section 222 of the CrPC and held that:

"36. .............................................................The appellant was charged under Sections 376/511 IPC but on invoking the provisions of Section 222 of the Code of Criminal Procedure, the accused charged with major offence can always be convicted for the minor offence, if necessary ingredients of minor offence are present."

Having observed thus, finally, the Supreme Court had returned the finding of conviction under Sections 354/366 of IPC.

It is noticed that while deciding the case of Pulin Bihari Roy(supra), the learned Single Judge of this Court did not notice the discussions made by the Supreme Court in Shamnsaheb M. Multtani(supra) to trace out the distinction on application of Section 222 of CrPC which are as under:

"17. The composition of the offence under Section 304-B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-à-vis the latter. However, the position would be different when the charge also contains the offence under Section 498-A IPC(husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand".

So when a person is charged with an offence under Sections 302 and 498-A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section 304-B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304-B IPC without the said offence forming part of the charge?"

I have meticulously gone through the decision of the judgment in Shamnsaheb M. Multtani (supra). In that case, the trial was proceeded only on the charge of Section 302 of IPC for committing murder to his wife. The trial court acquitted all the three accused including the husband of the deceased-wife. The State of Karnataka had preferred appeal before the High Court of Karnataka. The High Court "after reaching a cul-de-sac, swerved over to a different offence i.e. dowry death and convicted one of them (the husband) under Section 304-B of the Penal Code, 1860 and awarded the maximum sentence of life imprisonment prescribed thereunder on him besides Section 498-A IPC." Before the Supreme Court the question of law arose as the appellant was not charged under Section 304-B of IPC. "The question raised is this: Whether an accused who was charged under Section 302 IPC could be convicted alternatively under Section 304-B IPC, without the said offence being specifically put in the charge".

The crux of the matter, as I find in Shamnsaheb M. Multtani (supra) is that Section 304-B cannot be said to be a minor offence than that of Section 302 of IPC. While the basic constituent of an offence under Section 302 IPC is homicidal death, that of Section 304-B IPC is dowry death and in view of Section 113-B of the Evidence Act, if the prosecution succeeds in showing that soon before her death she was subjected by the husband to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred(within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused the dowry death". Again under Section 4 of the Evidence Act "whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved". So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both."[Shamnsaheb M. Multtani(supra), SCC p.586, para 18].

In this circumstance, the Supreme Court in Shamnsaheb M. Multtani (supra) has held that since the accused-husband was not given any opportunity to defend himself to rebut the presumption as may be drawn by the court under Section 113-B of the Evidence Act, and as he was defending charge under Section 302 of IPC alone, that caused grave miscarriage of justice when he was alternatively convicted under Section 304-B of IPC and sentenced thereunder on the basis of the evidence that attracted the ingredients of Section 304-B of IPC. In that eventuality, the Supreme Court sent the case back to the trial court to afford opportunity to the accused to defend his case and to decide the case in accordance with law.

Thus, in view of the law laid down in Tarkeshwar Sahu (supra) and since it was not brought to the notice of the learned Single Judge, the findings returned by this Court in Pulin Bihari Roy (supra) appears to be not persuasive to this Court, in the context of the present case.

As a corollary, in view of Section 222 CrPC and keeping pace with the enunciation of law encrypted in the above authorities, it is concretised that the accused may be convicted under any minor offence, if from the proven facts and circumstances, some elements of higher offence(s) for which the accused is charged are found compatible and commensurate to the minor offence. (emphasis supplied)

In view of Section 386 of CrPC, it is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts(Padam Singh vs. State of Uttar Pradesh, AIR 2000 SC 361).

Looking at the entire facts and circumstances of the present case, there is no act shown in the commission of offence so as to prove that the appellant had committed any act amounting to rape or did not commit rape, neither he used any force nor had threatened the victim. There was no one present when the incident took place. Moreover, the victim, as per her statement, felt unconscious. As per her evidence, she was assaulted by the appellant and became senseless and she cannot say anything. Further, most of the witnesses are the hearsay witnesses. In the instant case, none of the witnesses have stated that there was intention of the appellant to outrage the modesty of the victim. Hence, in my considered opinion, the act of appellant amounts to an offence punishable under Section 354 IPC.

The learned counsel appearing for the appellant has not raised the plea of prejudice of such conviction to the minor offences, as aforestated. In the instant case, it cannot be said that the appellant did not get opportunity to defend himself or, in other words, the court did not afford him opportunity, which would render failure of justice. According to me, the cardinal principle which the court must endeavour to find the truth, and if some elements of the major offences and, in this process, if the court finds that all elements required to prove the major offences, are not found, but, some elements attract the provision of minor offences, then, there is no impediment to reduce the conviction into that minor offence(s), to meet the ends of justice.

In the ultimate analysis, both on factual and legal aspects, in my opinion, there is no legal embargo to convert or reduce the conviction from section 354B/323 IPC to section 354 of the IPC.

Accordingly, the appellant has been declared to be convicted under Section 354 of the IPC. Section 354 IPC prescribes punishment to suffer imprisonment which shall not be less than one year, but, which may extend to five years, and shall also be liable to fine. Section 323 IPC prescribes punishment to suffer imprisonment which may extend to one year, or with fine upto rupees one thousand or with both.

It transpires that the appellant had been in custody from 19.02.2015 to 22.05.2015 during investigation and thereafter, since the date of the judgment which was passed on 10.05.2018. Thus, he has already suffered rigorous imprisonment for more than one year. Considering the extent and gravity of the offence, the appellant is sentenced to suffer imprisonment for the period which he has already undergone. Accordingly, the judgment and order of conviction dated 10.05.2018 passed by the learned Sessions Judge, North Tripura, Dharmanagar in connection with case No. S.T. (T-1) 15 of 2015 is modified to the above terms. Consequently, the appellant be set at liberty. The appellant is discharged from bail bond. Surety is also discharged.

The instant appeal stands allowed in part, in the above terms.