Swapan Chandra Shil vs State Of Tripura

[1]. Heard Mr. D. Sarkar, learned counsel appearing for the appellant as well as Mr. A. Roy Barman, learned Addl. P.P. appearing for the State.

[2] This is an appeal under Section 374 (2) of the Cr.P.C on challenging the judgment and order of conviction and sentence dated 21.12.2015 delivered in S.T.15(T-2) of 2014 by the Addl. Sessions Judge, No.5, West Tripura, Agartala. By the said judgment, the appellant has been convicted under Sections 365/511 of the IPC and in consequence thereof, the appellant has been sentenced to suffer simple imprisonment for 6[six] months with fine of Rs.2,000/- with default imprisonment.

[3] The genesis of the prosecution is rooted in the complaint filed by the victim, namely Manga Laxmi Debbarma [PW-1] to the Officer-in-Charge of East Agartala Women P.S. revealing that after her duty in a nursing home when she was returning home by boarding an auto rickshaw bearing registration No.TR-01-D- 2095 towards her place of residence at Gandhigram, when she reached near the tri-junction nearby the Army Camp, the driver of the said auto rickshaw, whom she identified as Swapan Ch. Shil, had taken a turn to a different direction towards Chandmari which is located in the opposite direction. Out of fear, as she had contemplated an attempt of abduction, she jumped outside the auto rickshaw and shouted for help. At that time, the local people apprehended the appellant and detained his auto rickshaw.

Based on the said complaint, East Agartala Women P.S. Case No.98 of 2013 under Sections 365/511 of the IPC was registered and taken up for investigation. The investigation was done by Mamtaz Hassina [PW-5] and on completion of the investigation, she filed the final police report chargesheeting the appellant under Sections 366/511 of the IPC. The case since was triable by the court of Sessions, the police papers were committed to the court of the Sessions Judge. In the course of the time, the case was transferred to the court of the Sessions Judge, No.5, West Tripura, Agartala who after taking cognizance framed the charge under Sections 366/511 of the IPC against the appellant to which the appellant pleaded innocence and claimed to be tried in accordance with law.

[3] In order to substantiate the charge, the prosecution has adduced as many as 5 [five] witnesses including the victim and introduced 5[five] documentary evidence including the written complaint [Exbt.1]. After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. to have his say, in response to the incriminating materials surfaced in the evidence. Thereafter, on appreciation of the evidence, the finding of the conviction as stated has been returned.

Based on the analysis, the finding of the conviction has been returned and that finding is under challenge in this appeal.

[4] Mr. D. Sarkar, learned counsel appearing for the appellant has submitted that there is no other witness to corroborate her and the victim [PW-1] cannot be relied inasmuch as she had apprehended the entire situation and made hue and cry. He has further submitted that if the statement of PW-4, namely Bitush Das is carefully examined by the court it would be apparent that there was misappropriation by PW-1. Thus, he has urged this court to set aside the finding of conviction and acquit the appellant from the charge.

[5] From the other side, Mr. A. Roy Barman, learned Addl. P.P. appearing for the State has emphatically submitted that there is no reason to disbelieve the victim [PW-1] inasmuch as the post occurrence witnesses have completely corroborated and endorsed her staled reaction immediately after the occurrence. If the evidence is cumulatively read, it would be apparent that the victim was truthful.

[6] Having appreciated the testimonies of the victim [PW- 1], the post-occurrence witnesses, namely Sandhya Laxmi Debbarma [PW-2] and Sunil Debbarma [PW-3] as well as Bitush Das [PW-4] with the testimony of the investigating officer, namely Mamtaz Hassina [PW-5], this court is of the view that there cannot be any earthly reason to disbelieve the testimony of the victim. On the contrary, it is wholly reliable and as such, this court is not inclined to interfere with the finding of conviction but having found that against the appellant, no criminal antecedent has been recorded and the trial court did not consider the appellant under Section 360 of the Cr.P.C. Age of the accused on the day of recording the statement under Section 313 of the Cr.P.C. was about 38 years. The trial court did not consider whether he can be considered for probation under Section 4 of the Probation of Offenders Act or not, even though he was charged under Section 366 of the IPC. Nature of offence and its mode of execution, as well absence of any criminal antecedent have persuaded this court to consider the probation for the accused person by keeping the sentence on hold.

[7] Having observed thus, the sentence is suspended if the appellant can come out successfully the period and conditions of probation. The appellant shall be released on probation of good conduct for one year on obtaining a bond thereof, supported by one surety who is capable of paying Rs.20,000/- in the event of default in pursuing the conditions of the probation. The bond of probation shall be furnished in the court of the Addl. Sessions Judge, No.5, West Tripura, Agartala supported by the said surety. The appellant shall be placed on probation under the surveillance of the probation officer of that area. The probation officer shall make report to the trial court in the event of any misconduct or breach of the conditions as could be laid down in terms thereof. It is made clear that if any adverse report is received, the trial court shall give opportunity to the appellant and take him to the custody for serving out the sentence as imposed by the impugned order.

[8] In the result, this appeal stands partly allowed. Send down the LCRs forthwith.