Shri Nirananda Sinha vs The State of Tripura

This is an appeal by the convict namely, Sri Nirananda Sinha, hereinafter referred to as the appellant, directed against the judgment of conviction

and order of sentence dated 09.09.2014 delivered in S.T.03(NT/D) of 2013.

The genesis of the prosecution is rooted in the complaint filed by the victim, name withheld for purpose of protecting her identity. It had been

alleged in the complaint that after her marriage with one of the co-accused, namely Hariballab Sinha she went to the house of the accused persons

for leading her conjugal life but immediately after her reaching there, on such unlawful demand she was subjected to physical and mental torture. All

the accused persons had committed assault on her on such unlawful demand. They used to keep her without any food and force her to work

throughout the day. Her husband, one of the co-accused had gone to Aizwal. During his absence, the other accused persons continued and

increased the level of torture. Those accused persons repeated their demand for ''dowry''. Even they informed her parents. Her father came to the

house of the accused persons with one of her maternal uncle. On that very night, she was assaulted by the accused persons [except her husband

who was away from home]. Her father took her to her paternal house. There she stayed for 25 days and thereafter, she came back to the

matrimonial house. On 02.09.2012 at about 2.30 am at night her father-in-law, the appellant herein, entered her room and forcibly undressed her

by gagging her mouth by his hand. He attempted to commit rape on her. She shouted desperately when the inmates rushed, the appellant left that

room. Again the appellant repeated such act on 06.09.2012 at deep at night by pressing ''his penis into her vagina''. She raised alarm and the

appellant slipped from her room. The other inmates including two accused persons did not take any action to protect her from the appellant.

Finally, on 09.09.2012, her father came and took her from her matrimonial home. Damcherra Panchayet was informed about the incidents and

they had convened a meeting with the accused persons but they intentionally avoided to attend that meeting. Even thereafter, the accused persons

threatened her of dire consequence. Finally, on 29.09.2012 a complaint in writing [Exbt.3] was filed to the Officer-in-Charge, Damcherra P.S.

which was registered as Damcherra P. S. Case No.22/2012 under Sections 498-A/34/376/511 of the IPC.

On completion of the investigation, the chargesheet was filed against all the FIR named accused persons viz. [a] Hariballab Sinha @ Akashbabu

[b] Sri Niranda @ Nirananda Sinha [c] Smt. Gukolini Sinha and [d] Sri Swarnajit Sinha @ Sunano under Sections 498-A read with Section 34 of

the IPC and against the accused Niranda @ Nirananda Sinha under Section 376 read with Section 511 of the IPC. After the case was committed

for trial to the court of the Addl. Sessions Judge, in the course of time the same was transferred to the court of the Assistant Sessions Judge,

Dharmanagar, North Tripura for trial in accordance with law. The trial court framed charges separately. Against the FIR named 4(four) accused

persons the charge was framed under Section 498- A read with Section 34 of the IPC whereas an additional charge was framed against the

accused person, namely Niranda @ Nirananda Sinha under Section 376 read with Section 511 of the IPC. The accused persons denied the

charges and pleaded their innocence. As consequence, the trial commenced and in order to substantiate the charge, the prosecution adduced both

oral and documentary evidence. The prosecution has examined as many as 13[thirteen] witnesses including the victim [PW-7]. The prosecution

has also introduced 6[six] documentary evidence including the written complaint [Exbt.3]. After recording of the prosecution evidence, the accused

persons were separately examined under Section 313 of the Cr.P.C. to have their say on the materials incriminating them. It appears from the

records that after recording of the evidence of the accused persons the case was retransferred to the court of the Addl. Sessions Judge which

passed the impugned judgment of conviction and order of sentence. It would be relevant to extract the observations of the trial court made in the

said judgment which read as follows:

The evidence of the informant victim does not show the actual time when the demand was made and her evidence is also not corroborated in full

length by her parents. So I am satisfied that this is not at all a case of section 498(A) of IPC. So the offence u/s. 498(A) of IPC against the

accused persons namely [1] Sri Hariballab Sinha @ Akashbabu, [2] Sri Swarnajit Sinha @ Sunano, [3] Smt. Gukolini Sinha [4] Nirananda Sinha

is proved by the prosecution.

On careful scrutiny of the prosecution evidence though sometimes there is evidence that she was raped but again the victim stated that rape

attempt by her father in law was unsuccessful though her wearing apparels were torn. There is no crude evidence to come to a definite conclusion

as to whether there was any attempt to commit rape on the victim. But it is clear that her modesty was outraged by her father in law by touching

her person. So, I find and hold that prosecution in this case is able to prove a clear case of Section 354 of IPC as against accused Nirananda

Sinha.

Consequent upon such observation, the trial court acquitted the other accused persons, except the appellant herein, who has been convicted

under Section 354 of the IPC and sentenced to suffer rigorous imprisonment for 2[two] years and to pay a fine of `5,000/-, in default of payment

of fine, to suffer simple imprisonment for 3[three] months. It has been also observed in the order of sentence that the period of detention as the

appellant had undergone during the investigation, inquiry and the trial shall be set off against the term of imprisonment as per provisions of Section

428 of the Cr.P.C.

Learned counsel for the parties have clearly spelt out that the state has not preferred any appeal against the acquittal of the other accused

persons or acquitting the appellant from the charge under Section 376 (1) read with Section 511 of the IPC. Thus, the appeal as preferred by the

appellant is structured for examination by this court whether the conviction under Section 354 of the IPC is legally sustainable or not.

Mr. S. Lodh, learned counsel appearing for the appellant has strenuously argued that the trial court has disbelieved PW-7 so far the attempt to

commit rape is concerned, but the trial court has believed the same witness for convicting the appellant on the charge of 354 of the IPC. Mr. Lodh,

learned counsel has emphatically submitted that even the trial court has disbelieved the evidence of Sundar Kumar Sharma [PW-8], Surendra

Sinha [PW-9], Smt. Nidra Sinha [PW-5, the mother of the victim] and Ram Gopal Sinha [PW-6], so far the charge under Section 376(1) read

with Section 511 of the IPC is concerned. But those witnesses are strangely relied by the trial court for purpose returning the conviction under

Section 354 of the IPC. Mr. Lodh, learned counsel has submitted that the judgment of conviction is logically unsound and in this regard, he has

referred a decision of this court in Babul Laskar vs. State of Tripura [judgment and order dated 21.01.2014 delivered in CRL.A.(J) No.06 of

2009]. In the said judgment, it has been observed that ''if the allegation of rape cannot be believed, on the single of fact which the prosecutrix

alleged, it is very difficult to arrive at a conclusion that modesty of the prosecutrix was outraged by the accused. There is no room to separate the

facts in different compartments and to separate the grains from chaffs. If the allegation of rape is doubtful and cannot be believed, in the given facts

and circumstances, no other allegation on the same bundle of facts can be believed. The allegations so far made by the prosecutrix as a whole is

doubtful for the reasons discussed above and hence, I think it is a fit case where the accused-appellant should be given the benefit of doubt.''

From the other side, Mr. S. Sarkar, learned P.P. appearing for the State has submitted that the very basis of the objection raised by the

appellant is unsustainable in view of the well-entrenched canon of appreciation of evidence. Mr. Sarkar, learned P.P. has submitted that is a thin

line between the preparation for and an attempt to commit an offence. Attempt to commit an offence begins with the preparation and the attempt is

complete when the culprit commences to do something in furtherance of the commission of offence. In Malkiat Singh & Anr vs. State of Punjab,

reported in 1970 AIR 713, the apex court has laid down the test in determining whether the act of the accused constitutes a complete act or

preparation, and observed that if the overt acts already done are such that if the offender changes his mind and does not proceed further in their

progress, the acts already done would be completely harmless. In that case, for mere preparation no offence can be stated to have been

committed. For purpose of reference, the following passage from Malkiat Singh (supra) is extracted hereunder:

......The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are

such that if the offender changes his mind and does not proceed further in its progress the acts already done would be completely harmless. In the

present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed

their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the

Essential Commodities Act states that ''any person who attempts to contravene, or abets a contravention of any order made under Section 3 shall

be deemed to have contravened that order.'' But there is no provision in the Act which makes a preparation to commit an offence punishable. It

follows therefore that the appellants should not have been convicted under Section 7 of the Essential Commodities Act.

Mr. Sarkar, learned P.P. has further submitted that the act that was already committed by the appellant is punishable under Section 354 of the

IPC. The culpable action is complete in itself and it clearly constitutes outrage of modesty. Thus, the trial court did not commit any mistake in

returning the finding of conviction.

Having appreciated the submission made by the learned counsel appearing for the parties and scrutinized the records, the question that emerges

of paramount importance is that whether against the appellant the prosecution has succeeded to prove that he had assaulted or applied criminal

force to the victim with intent to outrage her modesty. It is apparent from bare reading of Section 354 of the IPC that intention or knowledge is

essential ingredient of the offence, meaning the act is to be a deliberate one, not of any other nature. The law is now is well grounded that having

culpable intention if by anyone the modesty is outraged in which the action of the offender is as such it could be perceived as one which is capable

of shocking the sense of decency of woman the said offence is complete. In Mrs. Rupan Deol Bajaj & Anr. vs Kanwar Pal Singh Gill & Anr,

reported in (1995) 6 SCC 194 the apex court had occasion to observe as under:

Since the word ''modesty'' has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to

Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means ''womanly propriety of

behaviour; scrupulous chastity of thought, speech and conduct''. The word ''modest'' in relation to woman is defined in the above dictionary as

''decorous in manner and conduct; not forward or lewd; shamefast''. Webster''s Third New International Dictionary of the English Language

defines modesty as ''freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct''. In the Oxford English

Dictionary (1933 Edn.) the meaning of the word ''modesty'' is given as ''womanly propriety of behaviour; scrupulous chastity of thought, speech

and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions"".

It has been further observed in Rupan Deol Bajaj (supra) as under:

In dealing with the above Section in Veeda Menezes vs. Yusuf Ibrahim Khan (AIR 1966 SC 1773) a three- Judge Bench of this Court

observed that the object of framing the Section was to exclude from the operation of the Indian Penal Code those cases which from the

imperfection of language may fall within the letter of the law but are not within its spirit and are considered, and for the most part dealt with by the

courts, as innocent. In other words, the Section is intended to prevent penalisation of negligible wrongs or of offences of trivial character. In

interpreting the expression `harm'' appearing in the Section this Court said that it is wide enough to include physical injury as also injurious mental

reaction. As regards the applicability of the Section in a given case, this Court observed as follows:-

''Whether an act which amounts to an offence is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the

knowledge or intention with which the offending act is done, and other related circumstances. There can be no absolute standard or degree of

harm which may be regarded as so slight that a person of ordinary sense and temper would not complain of the harm. It cannot be judged solely

by the measure of physical or other injury the act causes? "".

[Emphasis added]

From the evidence of PW-6, namely Ram Gopal Sinha [father of the victim] it transpires that she immediately after the second occurrence

rushed to the victim''s matrimonial home and brought his daughter back as she had stated that she was unable to bear the situation. His daughter

[PW-7] had clearly stated to him that the appellant attempted to commit rape upon her in their house in absence of her husband. PW-7, the victim,

is the key witness. Her status of being an injured witness cannot be brushed aside so easily unless it is proved that the statement so made is not

trustworthy at all. She has stated in the trial thus:

On 02.09.2012 night at 2-30 am. i.e. the intervening night of 2nd September and 3rd September of 2012 I was sleeping in my room. In between

2-30 am. to 3 am of that intervening night my father in law Nirananda Sinha entered into my dwelling room and pressed my mouth. He touched my

various parts of my body and attempted to commit rape upon me against my will. At that time to resist myself I gave a kick to him and cried out.

The my mother in law woke up but she did not enter in my room and she was outside of the room, then my father in law left the room. On

06.09.2012 at about 10 pm./11 pm when I entered in my room at that time accused Nirananda Sinha i.e. my father in law caught hold me and

embraced from my backside. I firmly believed that he was remained inside the room prior to my entrance. Then my father in law Nirananda Sinha

forcibly make me fallen on the bed in the room. Thereafter he torned my wearing apparels. He touched my breasts and tried to commit rape upon

me. (While deposing the above statement Sujala Sinha has seen crying and tears were coming from her eyes). At last in consequences of above

aforesaid activities the accused Nirananda Sinha started to commit rape upon me against my will but due to strong resistance made by me he could

not complete the rape.

The trial court has not only recorded the demeanour of PW-7 at the time of recording her evidence. It has as well recorded the facts which are

though not in issue but connected with the fact in issue as to form part of the same transaction. The immediate reaction of the victim to PW-6 is a

reliable piece of res gestae truthfulness of her bracing statement made in the trial court about the criminal force applied by the appellant to outrage

her modesty.

PW-8, Sundar Kumar Sharma and PW-9, Surendra Sinha are chance witnesses and their presence in the nearby place of occurrence in the

relevant time may not be totally believable. But PW-10, Manik Saha has stated that the appellant ''one day committed rape'' upon the victim. He

has stated that she was required to be brought her father, else she would have committed suicide. PW-12, the investigating officer has stated that

he had seized the apparels [Exbt.M.O.1] of the victim which were in her wearing at the time of the occurrence by preparing the seizure list

[Exbt.2]. From Exbt.2, it appears that PW-12 along with other materials had caused seizure of the following materials in the condition as described

in Exbt.2 as under:

(i) One (01) yellow colour ''orna'' (slightly torned)

(ii) One (01) yellow colour ''blouse'' (-do-).

Thus, Exbt.M.O.1 series stand to corroborate the statement of the victim. The victim had also narrated the episode in the same manner to her

mother [PW-5, namely Nidra Sinha]. There is a substantial delay, no doubt, in informing the matter to the police station inasmuch as the last

occurrence had taken place on 06.09.2012 but the written complaint was filed on 29.09.2012 and the police station registered the same on

19.11.2012. The explanation that has been given is in crux is that the victim was under threat and as such, she was not able to reach Damcherra

Police Station which situate far away from her parental house. The explanation as given may not be very satisfying but considering the nature of the

offence alleged the delay can be overlooked as the victims of sexual harassment in our society are further traumatized by social stigma. That

creates reluctance in the victims to approach the police. The apex court in catena of decisions has observed that while the offence like rape or

outrage the modesty is complained of by a victim the delay should be liberally considered. The other objection as raised by Mr. Lodh, learned

counsel based on a decision of this court in Babul Laskar (supra) has failed to persuade the court inasmuch as the said proposition of law is coming

in conflict with the law as enunciated by the apex court in Ugar Ahir and others vs. State of Bihar, reported in AIR 1965 SC 277, Champaklal

Ganeshmal vs. State of Maharashtra, reported in 1975 Cr.L.J 256, Nisar Ali vs. The State of Uttar Pradesh, reported in AIR 1957 SC 366,

Gurcharan Singh and another vs. State of Punjab, reported in AIR 1956 SC 460, Rai Singh vs. The State of Haryana, reported in AIR 1971 SC

2505, Ranbir and others vs. State of Punjab, reported in AIR 1973 SC 1409, 1973 SCC (Cr.) 858 and Bhe Ram vs. State of Haryana, reported

in AIR 1980 SC 957.

The maxim falsus in uno, falsus in omnibus [false in one thing, false in everything is neither a rule of law nor a rule of practice] has not been

given recognition as the sound legal principle in our country. Even if evidence is partly false, the whole evidence cannot be discarded. But when the

witness makes false statement intentionally, testimony of such witness turns unreliable. [State (Delhi Admn.) vs. V.C. Shukla and another etc.,

reported in AIR 1980 SC 1392]

The question therefore is whether the evidence of any witness if is not wholly reliable, can it be relied in part and on such evidence whether the

judgment of conviction can be returned by the trial court?

After appreciating the evidence what has emerged is that the appellant with intention to commit sexual intercourse or to outrage the modesty of

the victim had entered her room in two different occasions, lastly on 06.09.2012. If the evidence of PW-7 is appreciated with the subsequent

immediate act, as relevant under Section 6 of the Evidence Act and the material object as seized [M.O.1 series], it is well established that the

appellant having intent to outrage the modesty of the victim had applied the criminal force by entering into her room in the wee hour of night and the

shock was so grave that the victim told her father that if she had not been taken back from her matrimonial home she would commit suicide. These

pieces of evidence create an overwhelming ring of trustworthiness. Hence, this court is of the view that there is no infirmity in the finding of

conviction as returned by the trial court nor is there any infirmity in the order of sentence.

Having observed thus, this appeal is dismissed. The appellant shall surrender in the trial court for serving out the sentence within a period of

1(one) month from today.

A copy of this order be sent with expedition to the trial court with records.