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Judgment
[1] Heard Ms. S. Chakraborty, learned counsel appearing for the revision petitioners as well as Mr. S. Debnath, learned Addl. P.P. appearING for the State.
[2] This revision petition under Section 397 read with Section 401 of the Cr.P.C. challenges the judgment and order dated 15.03.2019 passed by the Additional Sessions Judge, Gomati Tripura in Crl. A. No.60(4) of 2017 by upholding the conviction and sentence dated 17.11.2016 delivered in PRC (WP) No.17 of 2014 by the Chief Judicial Magistrate, Gomati Tripura.
[3] The Chief Judicial Magistrate has convicted the petitioners under Section 447/354 of the IPC and sentenced them to suffer rigorous imprisonment for 1 (one) month for commission of offence under Section 447 of the IPC and rigorous imprisonment for 1 (one) year for commission of offence under Section 354 of the IPC with further direction that the sentences shall run concurrently. As such, the substantive imprisonment is of 1(one) year rigorous imprisonment.
[4] It appears from the record that, the prosecution was launched against the petitioners on the basis of the complaint filed by PW1 to the Officer-in-Charge, Udaipur Women Police Station revealing that the petitioners had entered in the house premises of the complainant by applying force and to occupy the land within their boundary. When the complainant had offered resistance they rushed to assault her when she took shelter inside her room. At that time, her husband and son were not present in the home. The petitioners had started pulling her wearing apparels and torn that in order to violate her modesty. She had raised alarm and some local people whose names have been given in the complaint rushed to her premise, when the accused persons [the petitioners] left the place of occurrence.
[5] Based on the said complaint, Women‟s P.S. Case No.147 of 2013 under Sections 448/354/506 read with 34 of the IPC was registered and taken up for investigation. On completion of the investigation the police report was filed charge-sheeting the petitioners to face the trial. Having taken the cognizance, the Chief Judicial Magistrate framed the charge under Section 447/354 of the IPC against the petitioners for their involvement in the said crime on 23.12.2013 as referred. The petitioners had pleaded their innocence in order to deny the charge. The prosecution has adduced as many as 6 (six) witnesses to substantiate the charge and adduced 4 (four) documentary evidence including the seizure list of torn saree (Exbt.2). After recording the evidence led by the prosecution, the petitioners were examined under Section 313 of the Cr.P.C. separately when they reiterated the plea of innocence by stating the incriminating materials as falsified.
[6] Thereafter, the Chief Judicial Magistrate has returned the finding of the conviction under Section 447 and 354 of the IPC against the petitioners on keen appreciation of evidence and sentenced the petitioners, as stated before. The said sentence is as well under challenge in this petition.
[7] Ms. S. Chakraborty, learned counsel appearing for the petitioners has submitted that the content of the complaint has not been proved by the victim who had filed it to the police. Further, it has been contended that there is no ingredient of offence punishable under Section 354 of the IPC.
[8] Ms. Chakraborty, learned counsel has submitted that out of the subsisting enmity, the said false case had been lodged and it will be apparent from the deposition of PW1 itself that one of the petitioners namely Kanu Miah lodged the complaint much before the petitioners in the police station. Thus, Ms. Chakraborty, learned counsel has insisted this court to reverse the finding as returned by the Chief Judicial Magistrate.
[9] From the other side, Mr. Debnath, learned Addl. P.P. has quite vehemently submitted that the torn saree as introduced in the evidence, if assessed, along with the oral evidence recorded through the witnesses particularly PW1, PW2, PW3 and PW4, it would be sufficient to affirm the conviction under Section 447/354 of the IPC. Mr. Debnath, learned Addl. PP has submitted that the judgment and order of conviction and sentence as passed by the Chief Judicial Magistrate have been upheld by the appellate court and there exists no reason to interfere it.
[10] This court for purpose of appreciation of the submission made the learned counsel for the parties has made a meaningful survey of the evidence. It surfaces from that exercise that the evidence of PWs1, 2, 3 and 4 are material to locate the transaction of offence.
[11] PW1, Roshna Bibi has stated that on 23.12.2013 at about 1.00 pm in the place called Rajarbag, Ranjit Miah and Kanu Miah (the petitioners herein) started excavating trench for constructing their house and when she raised objection, they abused her by filthy language and thereafter they entered into her house and assaulted her by fist and blows and she has further stated that they "also pulled my wearing saree and the same was torn and also outraged my modesty and on hearing the alarm the nearby people came to the spot and the accused persons fled away from the spot." The matter was initially sought to be settled by Panchayat but the petitioners did not appear in such meeting and the complaint (Exbt.1) was lodged. She has also stated that the police seized the torn saree by preparing a seizure list (Exbt.2) and she had identified the said saree (Exbt. M.O.1) in the trial.
She was rigorously cross-examined. She has admitted in the cross-examination that there is a boundary wall in between the house of her and the house of one the petitioners namely, Kanu Miah. That fact, however, she did not state to I.O., but according to this court this is not very material which may strike at the root or the substratum of the prosecution case. In the cross-examination, she has stated that Sundar Ali, Rahima Bibi and Roshan Ali live adjacent to her house, but they were not examined by the investigating officer.
[12] PW2, Mst. Nayan Begum has testified that while the petitioners started to construct their house in their land, her mother Roshna Bibi, PW1 raised objection and as a result, the accused persons scolded her mother with slang language and also entered into their house and assaulted her mother with fists and blows. They torn saree of her mother and tried to drag her. She hadraised alarm. Her statement could not be shaked by the cross-examination.
[13] PW3, Tajer Islam, is a witness from the neighbourhood. He has stated that on hearing hue and cry from the house of Roshna Bibi (PW1) they rushed to her house and found the accused persons were leaving the house of Roshna Bibi and Roshna was lying on the ground in her house. Her wearing apparels were torn. On being asked, Roshna told them that the petitioner‟s had assaulted her by entering into her house and torn her wearing apparels. His statement also could not be shaked in the cross-examination.
[14] PW4, Manju Das is another witness from the neighbourhood and she has corroborated the part of the statement of PW1 by stating that when Roshna raised hue and cry she was in the shop. She had rushed to the spot and found the petitioners entered in the house of Roshna Bibi. She tried to resist them. But they did not obey her objection. The accused persons assaulted Roshna by entering into her house by fist and blows and also torn the wearing saree. The local people rushed to the place of occurrence after hearing the hue and cry. In the said circumstances, the petitioners fled away from the spot. The torn saree was seized by the police. She has identified her signature in the seizure list (Exbt.2) and also identified the material object (Exbt.M.O.1). Her statement could not be shaked in the cross-examination.
[15] Having keenly assessed the testimonies of the PW2 and PW4, it appears that the statement in respect of outraging modesty is little exaggerated. The meaning of modesty‟ even though it has not been legally defined in the statute, but by the judicial construction in Raju Pandurang Mahale v. State of Maharashtra reported in (2004) 4 SCC 371, modesty has been defined as the quality of being modest in relation to a woman. Modesty is "womanly property of behavior, scrupulous chastity of thoughts, peace and conduct". It secures the sense of shame, from instinctive aversion. The essence of women‟s modesty is sex. Mens rea is the sine qua non of culpability.
[16] From appreciation of the evidence, this court does not find that there was any intention to outrage the modesty of the victim (PW1) but it cannot be denied that she was hurt deliberately by both the petitioners. Since, the offence under Section 354 of the IPC behoves the element of the criminal force which is essential ingredient of the offence punishable under Section 323 of the IPC. Hurt‟ as such an offence is cognate to Section 354 of the IPC and minor in nature. Therefore, without framing any charge and on taking recourse to Section 222 of the Cr.P.C., this court is authorised to convict the petitioners under Section 323 of the IPC. In the face of plenty of evidence, the petitioners are convicted for committing offence punishable under Section 323 of the IPC. But the conviction and sentence under Section 354 of the IPC is set aside and quashed. Having considered the age of the petitioners and having no adverse report in respect of antecedent activities, they are sentenced to suffer simple imprisonment for one month. This court, however, will not interfere with the conviction and sentence as awarded against the petitioner under Section 447 of the IPC as the criminal trespass with intention to commit offence has been well established by sufficient evidence. It is further directed that both the sentences shall run concurrently.
[17] Having observed thus, this appeal stands partly allowed to the extent as indicated above.
Send down the LCRs forthwith.
[18] The petitioners shall surrender in the court of the Chief Judicial Magistrate, Gomati Tripura, Udaipur within 15 (fifteen) days from the day of receiving a copy of this order in order to serve out the sentence.
A copy of this order be supplied to the counsel of the petitioners.