Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 786 (GAU)

Gopal Deb v. State of Tripura

2010-09-30

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. This is an appeal filed by the convict Appellant under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment and order dated 31.1.2003 rendered by the learned Addl. Sessions Judge, Kamalpur, North Tripura in connection with Session Trial Case No. ST.6KNT.KMP) of 2002 whereby the Appellant was convicted under Section 354, IPC and sentenced to suffer simple imprisonment of 2(two) years and also convicted under Section 448, IPC and sentenced to suffer simple imprisonment for 6(six) months and again convicted under Section 436, IPC and sentenced to suffer rigorous imprisonment for 5(five) years and also to pay a fine of Rs. 2,000 (Rupees two thousand) only in default to suffer further simple imprisonment for 6(six) months, directing all the sentences to run concurrently. 2. The prosecution case is that on 16.10.2002 at about 9.15 hrs., one Pratima Sarkar, lodged an FIR with the Officer in-Charge, Kamalpur Police Station alleging that on 15.10.2002 at night about 11.30 hrs., one Gopal Deb, entered into her dwelling hut forcibly and maltreated her. She raised alarm and some how came out and bolted the door from outside. Gopal remained inside the hut. He set fire on her bedding. The villagers, in the meantime, came and extinguished the fire. Gopal Deb was caught red-handed by the villagers and handed over to S.P.O. Camp. The matter was reported to the Officer in-Charge, Kamalpur Police Station, who received the same and registered a crime being Kamalpur P.S. Case No. 50/2002 under Section 448/354/436, IPC. The I.O. visited the place of occurrence, prepared a hand sketch map with separate index and examined some witnesses. He also seized one half burnt mosquito net and sarees from the house of the complainant by preparing a seizure list. On completion of the investigation, the I.O. laid the charge sheet against the accused Appellant under Sections 448/354/436, IPC. 3. The learned SDJM, Kamalpur committed the case to the court of learned Addl, Sessions Judge, Kamalpur as the case is exclusively triable by the Court of Sessions. The learned trial court on the basis of materials made available, framed charges under Sections 448/354/436, IPC against the present accused Appellant, to which he pleaded not guilty and claimed to be tried. 4. The prosecution, in order to prove its case, examined as many as 8 witnesses while the defence examined none. The learned trial court on the basis of materials made available, framed charges under Sections 448/354/436, IPC against the present accused Appellant, to which he pleaded not guilty and claimed to be tried. 4. The prosecution, in order to prove its case, examined as many as 8 witnesses while the defence examined none. On the closure of prosecution evidence, the Appellant was examined under Section313 of the Code of Criminal Procedure. Thereafter, upon hearing the learned Counsel for the parties and on perusal of the records, the learned trial court passed the impugned judgment and order dated 31.1.2003 convicting and sentencing him as indicated above. 5. I have heard Mr. A.C. Bhowmik, learned Counsel for the accused Appellant and also heard Mr. P. Bhattacherjee, learned Addl. Public Prosecutor for the Respondent-State. 6. The victim woman was examined by the prosecution as PW1. In her deposition, she stated that there was a love affair between herself and the accused Appellant for a pretty long time and culminated into marriage without any ritual. The marriage was solemnized in presence of her old parents in her house and the accused Appellant gave her vermilion. One Ranu Deb was also present at the time of their marriage. After the marriage, the accused Appellant used to visit her daily and co-habited with her. Yet, he refused to take her to his house although, she insisted him for the same. The accused Appellant used to create hallah in her house and the fact was reported to the villagers including the village pradhan. A village bhaithak was held on 7.7.2002 and it was resolved that accused Appellant should take the informant to his house as his wife but he flouted the resolution of the panchayat and stopped visiting her for some days. Then she lodged a case before the court of learned SDJM, Kamalpur. He thereafter started visiting her again and thinking that he has changed himself, she started mixing with him as before. In the night of Dhasami of Durga Puja at about 11.30 p.m., the accused Appellant came to her house and requested her to open the door. On being refused, he broke the door open and entered into her room and outraged her modesty. He torn her saree, blouse, etc. She came out of the hut bolting the door from outside and cried for help. On being refused, he broke the door open and entered into her room and outraged her modesty. He torn her saree, blouse, etc. She came out of the hut bolting the door from outside and cried for help. At that time, some villagers rushed to her house, opened the door and caught him red handed. The fire was extinguished by some women. Her bedding and sarees were completely damaged by fire causing approximately a loss of Rs. 15,000. Some villagers including neighbours of the informant, who rushed to her house, on hearing her cry for help, were examined as PW1, PW2, PW3, PW4, PW5 and PW6. They have corroborated the evidence of PW1. 7. I have carefully gone through the evidence of the informant victim, PW1. As per her own deposition, she has been maintaining physical relation with the accused Appellant for a pretty long time, although, her marriage with him was not solemnized as per the Hindu rites. They have been living as husband and wife. Of course the conduct and habit of the accused Appellant were not to the liking of the informant. He was visiting her occasionally in the later part. On the date of occurrence also, the accused Appellant came to visit her but she was not in a mood to co-operate him for which the accused has to break open the door and enter into the house by using force. The fact of entering into the house of the informant by force needs no further proof. The Appellant trespassed into her house attracting offence under Section 448, IPC. 8. As regards the offence under Section 354, IPC, it may be noted that there is no eye witness because it happened in the night time and inside the house. It is difficult to accept that the accused Appellant committed assault or used criminal force with intent to outrage the modesty of the informant because of the admitted position that they have been maintaining physical relation as husband and wife for quite long time. In that view of the matter the accused Appellant cannot be made liable for committing offence under Section 354, IPC and he is to be acquitted of the charge under Section 354, IPC. 9. As regards the offence under Section 436, IPC, there is no conclusive evidence about committing mischief by fire or explosive substance with intent to destroy the informant's house. 9. As regards the offence under Section 436, IPC, there is no conclusive evidence about committing mischief by fire or explosive substance with intent to destroy the informant's house. The seizure of some half burnt sarees and mosquito net by the I.O. may give a scope for presumption against the accused Appellant but that itself is not enough to come to a conclusion that the alleged mischief was committed by him. In my considered view, the evidence on record is not enough to hold the accused Appellant responsible and liable for punishment under Section 436, IPC. The accused Appellant is, therefore, liable to be acquitted of the offence under Section 436, IPC. 10. The accused Appellant was admittedly caught red-handed by the villagers in the house of the informant. By the time the incident took place, the relation between the informant and the accused Appellant got strained. She did not like the visit of the Appellant on that particular night. She refused to open the door when the Appellant asked her to open the same but he entered into the house by force by breaking open the door. There is enough evidence on records in support of the fact that he trespassed into the house of the informant. The prosecution has been able to prove the charge under Section 448, IPC against the accused Appellant and he is liable to be convicted for committing the said offence under Section 448, IPC. The conviction and sentence ordered by the learned courts below, for committing offence under Section 448, IPC is, therefore, upheld. The accused Appellant stands acquitted of the charge under Sections 354 and 436, IPC. 11. The accused Appellant, Sri Gopal Deb stands convicted under Section 448, IPC and sentenced to suffer S.I. for 6(six) months with a fine of Rs. 1,000 (one thousand) only and in default to pay the fine, further S.I. of 15 days and he shall surrender before the learned trial court within two weeks from today to serve the sentence. If he fails to surrender, as directed, the learned trial court shall take necessary step in accordance with law. The period of detention, if any, during trial, shall be set off. 12. The present appeal stands partly allowed as indicated above. Send down the LCR to the court below forthwith.