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2014 DIGILAW 412 (TRI)

Dhananjoy Debbarma v. State of Tripura

2014-12-08

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. This revisional application, under Section 397 read with Section 401 of Cr.P.C. is directed against the judgment and order of conviction and sentence dated 05.08.2008, passed by learned Additional Sessions Judge, Khowai, West Tripura in Criminal Appeal No. 5(3) of 2008 where-under the learned Addl. Sessions Judge upheld the judgment and order of conviction and sentence dated 28.06.2008, passed by learned Judicial Magistrate 1st Class, Khowai in case No. GR 107 of 2005 under Section 354 of IPC. 2. Heard learned counsel Mr. Bhaskar Deb for the petitioner and Mr. A. Ghosh, learned P.P., for the State-respondent. 3. Prosecution case is that on 07.07.2005 at about 2-00 p.m. the informant victim Srimala Debbarma went to the nearby forest to collect the bamboo shoots and at that time, the accused-petitioner Dhananjoy Debbarma arrived there from behind, caught the victim and outraged her modesty. She could somehow escape herself from the clutches of the accused and rushed to her house and narrated the occurrence to her husband and others. On 08.07.2005 she lodged FIR before the O.C., Teliamura P.S. narrating the fact and accordingly Teliamura P.S. case No. 50 of 2005 under Section 354 of IPC was registered and after investigation charge-sheet was filed against accused Dhananjoy Debbarma for commission of offence punishable under Section 354 of IPC. 4. Cognizance was taken on the basis of police report and in course of trial, learned Judicial Magistrate 1st Class examined the accused under Section251 of Cr.P.C. to which the accused pleaded not guilty and claimed to be tried. 5. In course of trial, prosecution examined 8 witnesses and thereafter accused was examined under Section 313, Cr.P.C. and in his turn accused examined himself as D.W.1 and two more witnesses in support of his contention. The case of the accused-petitioner is that he is innocent and that a false case has been instituted. 6. Learned Judicial Magistrate 1st Class at the conclusion of trial found the accused petitioner guilty of the charge framed against him under Section354 of IPC and sentenced him to suffer R.I. for 6 months and to pay fine of Rs. 1000/-, in default of payment to suffer further R.I. for one month. 7. Aggrieved, the accused-petitioner preferred Criminal Appeal No. 5(3) of 2008 and the learned Addl. 1000/-, in default of payment to suffer further R.I. for one month. 7. Aggrieved, the accused-petitioner preferred Criminal Appeal No. 5(3) of 2008 and the learned Addl. Sessions Judge by impugned judgment dated 05.08.2008 dismissed the appeal and upheld the judgment and order of conviction and sentence. Hence, this revisional application. 8. Learned counsel Mr. Deb appearing for the accused-petitioner has submitted that in the FIR the alleged victim-prosecutrix stated that the accused caught her hand from behind and behaved with her indecently. She thereafter applied force and somehow got escaped from the hand of the accused and fled away to her house. In her deposition she stated that the accused caught her from behind and touched her breast. Because of this discrepancy the total prosecution case should be disbelieved and the trial Court as well as the appellate Court failed to construe this aspect and wrongly arrived at a finding of conviction. He has also submitted that there was a dispute between the accused and the husband of the victim and so because of that dispute it cannot be ruled out that a false case was instituted. 9. Learned P.P., on the other hand, has submitted that the evidence of the victim prosecutrix has not been shaken in any manner and there was no dispute with her to make a false allegation against the accused. 10. On perusal of the evidence of the victim prosecutrix, I find that she made a clear and cogent statement that when she went to the nearby forest from her house to collect bamboo shoots, the accused appeared there and from behind caught her hand and touched her breast. It is true that what has been stated in the FIR, there are some discrepancies in the statement made before the Court but this much has been proved from the deposition of P.W.1 that the accused touched the body of the victim with a motive to outrage her modesty. The culpable intention of the accused is the principal factor for consideration of an allegation of outraging of modesty. Even without touching the body the modesty may be outraged and it is not necessary that touching of body has to be proved. The victim in her FIR has stated that accused caught her from behind indecently and thereafter she could free herself from the clutches of the accused and fled away. Even without touching the body the modesty may be outraged and it is not necessary that touching of body has to be proved. The victim in her FIR has stated that accused caught her from behind indecently and thereafter she could free herself from the clutches of the accused and fled away. In her deposition she stated that the accused appeared in the spot where she was collecting bamboo shoots, caught from behind and touched her breast. I do not find any major contradiction or discrepancy in the evidence of the victim prosecutrix and, therefore, her evidence cannot be thrown overboard. She is the only star witness of the occurrence and the other witness supported her contention as she narrated the incident to them. There is nothing material in the evidence of D.Ws to discard the positive incriminating evidence of the victim prosecutrix. This Court while exercising power under Section 401 of Cr.P.C. is not require to re-appreciate and reconsider the evidence so meticulously which has already been appreciated by the trial Court and the appellate Court. I find no illegality, impropriety or irregularity in the appreciation of evidence by both the Courts below and I also find no irregularity in the proceeding. Therefore, the revisional application is found to be devoid of any merit. 11. Learned counsel Mr. Deb has further submitted that the accused is the father of four children and he is the sole bread earner and if he is kept in custody his family shall suffer. He prayed for taking a lenient view in respect of punishment since the accused-petitioner suffered for last few years, the pain of criminal proceedings. 12. Learned P.P. has submitted that in respect of punishment if a lenient view is taken, he has no objection. 13. So, considering the submission of learned counsel of both side and considering the nature and gravity of the allegation, I do not think it is a fit case to give the benefit of Probation of Offenders' Act or that of punishing him with fine only. 14. Considering all aspects, the sentence is reduced. The accused-petitioner, Dhananjoy Debbarma, shall suffer R.I. for 45 days and pay a fine of Rs. 1000/- (rupees one thousand) only in default of payment of fine to suffer R.I. for 15 days. 15. The Criminal Revision petition accordingly stands disposed of. 16. 14. Considering all aspects, the sentence is reduced. The accused-petitioner, Dhananjoy Debbarma, shall suffer R.I. for 45 days and pay a fine of Rs. 1000/- (rupees one thousand) only in default of payment of fine to suffer R.I. for 15 days. 15. The Criminal Revision petition accordingly stands disposed of. 16. 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