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2021 DIGILAW 22 (TRI)

Dipak Das v. State of Tripura

2021-02-17

S.G.CHATTOPADHYAY

body2021
JUDGMENT : S.G. Chattopadhyay, J. 1. This criminal revision petition has been filed challenging the judgment dated 23.06.2016 delivered by the Sessions Judge, Unakoti Judicial District, Kailashahar in Case No. Criminal Appeal 06(3) of 2015 affirming the judgment and order of conviction and sentence dated 08.07.2015 passed by the Judicial Magistrate, First Class, Kailashahar in Case No. GR 76 of 2011 whereby petitioners were convicted and sentenced to R.I. for six months and a fine of Rs. 10,000/- each with default stipulation for commission of offence punishable under Section 354 read with Section 34 IPC and also sentenced to fine of Rs. 1000/- each with default stipulation for commission of offence punishable under Section 323 of the Indian Penal Code and it was ordered that fine on realisation be paid to the victim. 2. The brief facts which have led to the filing of this revision petition are as under: The victim (name withheld) lodged a written FIR with the Officer-in-Charge of Kumarghat police station at about 4.30 pm on 23.02.2011 alleging inter alia that on the previous day the two petitioners trespassed into her house and outraged her modesty. They caught hold of her and gagged her to prevent her from shouting and thereafter they grounded her by force and tried to undress her. Following her cry, her neighbours Ashish Nath Choudhury alias Mintu and his wife Niti Nath Choudhury appeared for her rescue. The petitioner namely, Dipak Das then took up a firewood from the place of occurrence and started striking the victim and his neighbours with it. The injuries of her neighbours being serious they were taken to RGM Hospital at Kailashahar for treatment. 3. Based on her FIR, Kumarghat PS Case No. 14/11 under Sections 447, 354 and 325 read with Section 34 IPC was registered and the case was taken up for investigation. The Investigating Officer met the victim and her said neighbours, recorded their statements under Section 161 Cr.P.C., visited the crime scene and prepared hand sketch map with separate index thereof and collected the injury reports of the victim and his injured neighbours and submitted charge sheet No. 22 of 2011 dated 31.03.2011 against the petitioners for having committed offence punishable under Sections 354 and 323 read with Section 34 IPC. The learned Chief Judicial Magistrate, North Tripura (as it was then) received the charge sheet and vide order dated 11.04.2011 took cognizance of offence punishable under Sections 354 and 323 read with Section 34 IPC and transferred the case to the trial Court for trial of the case. 4. The trial Court explained to the petitioners the substance of accusation brought against them in terms of Section 251 of the Code of Criminal Procedure, 1973 (Cr.P.C. hereunder). Both the petitioners pleaded not guilty and claimed a trial. 5. In the course of trial, prosecution examined 11 witnesses in all. Among them PW-1 is the victim, PW-2 (name withheld) is the husband of the victim. PW-3 Ashish Nath Choudhury alias Mintu is also a neighbour who rushed to the place of occurrence following the cry of the victim and witnessed the occurrence. PW-4, Dipak Chandra Haldar is the Medical Officer who attended the injured victim (PW-1) and Manik Das (PW-2) at Fatikroy PHC where they were brought for treatment after the occurrence. PW-5, Smt. Niti Nath Choudhury, wife of PW-3 is also an eye witness who appeared at the place of occurrence to rescue the victim. PW-6, Smt. Bithi Bhattacharjee is also a neighbour of the victim who heard the cry of the victim and saw the injured victim and their neighbour Niti Nath Choudhury (PW-5) immediately after the occurrence. PW-7, Smt. Basanti Das is a neighbour of the victim. PW-8, Sanjoy Das is also a neighbour of the victim. PW-9, Bibhash Ranjan Das is the Investigating Officer who carried out the whole investigation and submitted charge sheet against the accused persons. PW-10, Dr. Gitesh Bhattacharjee is a Medical Officer who examined PW-3, injured neighbour of the victim when he was brought to Kumarghat Rural Hospital for treatment immediately after the occurrence. PW-11 is Subhrendu Das who scribed the FIR (Exbt. 1/2). Apart from the ocular testimony of said 11 PWs, prosecution also relied on 9(nine) documents which have been marked as Exbt. 1 to Exbt. 7/2, Exbt. A and Exbt. B. 6. After the prosecution evidence was over, the petitioners were examined by the trial Court under Section 313 Cr.P.C. separately. Both of them gave similar reply. According to them, they were innocent and the victim lodged a false FIR against them. 1 to Exbt. 7/2, Exbt. A and Exbt. B. 6. After the prosecution evidence was over, the petitioners were examined by the trial Court under Section 313 Cr.P.C. separately. Both of them gave similar reply. According to them, they were innocent and the victim lodged a false FIR against them. With regard to investigation and filing of charge sheet, they stated that a false charge sheet was filed against them. Statements of the victim under Section 313 Cr.P.C. were recorded separately by the trial Court. 7. On appreciation of evidence, the trial Court found them guilty of the charges of offence punishable under Section 354 and 323 read with Section 34 IPC, convicted them and sentenced each of them to RI for six months and fine of Rs. 10,000/- with default stipulation for having committed offence punishable under Section 354 read with Section 34 IPC and also sentenced each of them to fine of Rs. 1000/- with default stipulation for committing offence punishable under Section 323 read with section 34 IPC and ordered that the whole amount of fine on realisation shall be paid to the victim. The aggrieved petitioner challenged the said judgment and order of the learned trial Court before the Sessions Judge, Unakoti Judicial District at Kailashahar who affirmed their conviction and sentence without modification by the impugned judgment dated 23.06.2016. Hence, this criminal revision petition. 8. Heard Mr. K. Nath, learned counsel appearing for the petitioners as well Mr. Ratan Datta, learned Public Prosecutor appearing for the State respondents. 9. Appearing for the petitioners Mr. K. Nath, learned counsel argued for setting aside the impugned judgment on the ground that the learned Sessions Judge did not consider the contradiction and infirmities appearing in the prosecution evidence while accepting the findings of the learned trial Court and, as such, the impugned judgment is wholly erroneous and liable to be set aside. It is argued by Mr. Nath, learned counsel that the neighbours of the informant were selectively chosen as prosecution witnesses to hide the truth. Those who favoured the informant were cited as charge witnesses and produced in Court and the independent eye witnesses who would have told the truth were kept away. According to Mr. Nath, Mahimuddin, adjacent neighbour of the victim who witnessed the occurrence was not cited as a prosecution witness. Those who favoured the informant were cited as charge witnesses and produced in Court and the independent eye witnesses who would have told the truth were kept away. According to Mr. Nath, Mahimuddin, adjacent neighbour of the victim who witnessed the occurrence was not cited as a prosecution witness. Further submission on behalf of the accused is that the weapon of offence which was allegedly used by the petitioners for assaulting the victim was not seized by police during investigation of the case and non seizure of this material evidence creates doubt about the veracity of the prosecution case. Further contention of Mr. Nath, learned counsel is that PW-3 who is claimed to have been an adjacent neighbour of the victim actually lives far away from the house of the victim which is evident from the hand sketch map drawn by the Investigating Officer. It is also argued by Mr. Nath, learned counsel that the courts below did not consider the fact that the basic ingredient of Section 323 and 354 IPC were not proved during trial and as a result, the judgments of the Courts below were wholly erroneous and unsustainable. Learned counsel, therefore, urges this Court for setting aside the impugned judgment. 10. Mr. Ratan Datta, learned Public Prosecutor has on the other hand supported the impugned judgment passed by the learned Sessions Judge. According to Mr. Datta, the judgment is based on sound appreciation of evidence and the attending facts and circumstances of the case. It is contended by Mr. Datta, learned Public Prosecutor that the petitioners took the opportunity of the helplessness of the victim and entered into her dwelling house and outraged her modesty and also caused hurt to her. It is submitted by Mr. Datta, learned Public Prosecutor that they were so violent that they did not even spare the innocent neighbours of the victim who came to rescue her. It is argued by learned Public Prosecutor that the witnesses have given a very consistent and coherent evidence in support of the prosecution case which has established the charges against the petitioners beyond all reasonable shadow of doubt. Learned counsel, therefore, urges for dismissal of their petition. 11. Among the witnesses examined on behalf of prosecution, the victim has been examined as PW-1. Learned counsel, therefore, urges for dismissal of their petition. 11. Among the witnesses examined on behalf of prosecution, the victim has been examined as PW-1. She stated at the trial that on 22.02.2011 at the material time the petitioners entered into her house when she was at work in the courtyard of her house. They inquired about her husband, she told them that her husband (PW-2) had gone for work. All on a sudden, petitioner Dipak Das gagged her mouth and the other petitioner started disrobing her and grounded her by force. She raised hue and cry for help and tried to run away from there. Petitioner Dipak Das then took a firewood from her courtyard and gave blow on her head which resulted in cut injury on her scalp. By that time her neighbours appeared at the spot. Having come to know about the occurrence, her husband(PW-2) returned home from work. She reported the whole incident to her husband who had taken her to nearby Fatikroy PHC where she was given a stitch on her scalp. It was also stated by her that petitioner Dipak Das also assaulted Ashish Nath Choudhury alias Mintu (PW-3) and her neighbour Sanjoy Das (PW-8). In her cross examination, her attention was drawn to her police statement recorded under Section 161 Cr. PC wherein she stated that the petitioner came in front of her house in drunken condition. The said contradiction appearing in her statement was marked as Exbt. A subject to confirmation by the I.O. 12. PW-2 is the husband (name withheld) of the victim. He stated at the trial that he rushed to the house immediately after he came to know about the occurrence. Having reached home he saw his wife lying on earth in the vegetable garden. She was in her petticoat at that time. He also found the accused petitioners and some of his neighbours near the place of occurrence. He came to know from his neighbours that the petitioners assaulted his wife, when he asked them as to why they assaulted his wife, the petitioners also started assaulting him. Thereafter, he had taken his wife to Fatikroy PHC where his wife narrated the whole incident to him. She also stated to her husband that the petitioners gagged her mouth, removed her wearing apparels and then they assaulted her with a firewood. Thereafter, he had taken his wife to Fatikroy PHC where his wife narrated the whole incident to him. She also stated to her husband that the petitioners gagged her mouth, removed her wearing apparels and then they assaulted her with a firewood. In his cross examination, the PW stated that the house of Mohimuddin and Bipul Bhatacharjee were situated close to his house at the northern side and southern side respectively. He also stated in his cross examination that the petitioners did not consume alcohol. His attention was then drawn to his police statement recorded under Section 161 Cr.P.C. wherein he stated that the two accused petitioners without any reason outraged the modesty of his wife in drunken condition. The contradiction appearing in his statement was also marked as Exbt. B, subject to confirmation by the Investigating Officer(PW-9). 13. PW-3 is Ashish Nath Choudhury alias Mintu who is also a very material witness of this case because he allegedly arrived at the place of occurrence following cry of the victim and witnessed the occurrence. The PW has stated that at the material time he was returning home when he saw the petitioner assaulting the victim. Victim was found lying on earth when one of the petitioners was assaulting her with a firewood. There was no Saree in her wearing at that time. Her blouse was found torn and she was in her petticoat only. At that time wife of the PW also appeared there and tried to save the victim from assault. Petitioner Tupul Das then attacked the PW and his wife (PW-5). He gave a blow with a firewood on the head of the PW as a result of which he lost his sense. He regained his sense in Kumarghat hospital. In his cross examination, the PW stated that his house is situated at a distance of 125 cubits from the house of the victim. It was also stated by him that he was on good terms with the victim's family. The PW further stated that he was not aware as to whether accused Tupul Das was in drunken condition at the time of occurrence. 14. PW-4 is Dipak Ch. Haldar who is a Medical Officer who attended the victim in Fatikroy Primary Health Centre on the date of occurrence at around 6 PM. The PW further stated that he was not aware as to whether accused Tupul Das was in drunken condition at the time of occurrence. 14. PW-4 is Dipak Ch. Haldar who is a Medical Officer who attended the victim in Fatikroy Primary Health Centre on the date of occurrence at around 6 PM. The victim was brought to the health centre with history of assault and the PW on her examination found a fresh lacerated wound on her skull which was measuring 4 cm x 1/2 cm x 1/2 cm. The injury report prepared and signed by the PW was exhibited at the trial and marked as Exbt. 2. 15. PW-5, Smt. Niti Nath Choudhury is the wife of PW-3 who also followed her husband (PW-3) and appeared at the house of the informant at the time of occurrence. She saw the victim lying on ground in her petticoat and the petitioners were also seen standing at the place of occurrence. Her injury was bleeding. When the PW asked accused petitioner Tupul as to why he assaulted the victim he became furious and kicked her on her belly, as a result of which she started urinating. Accused Tupul also struck her husband on his head with a fire wood when he asked him as to why he assaulted the victim. They were then shifted to hospital for treatment. In her cross-examination it was asked to her whether she lodged any FIR at the police station after she and her husband were assaulted by the accused persons. She answered that no separate FIR was filed by her. She also stated that she did not see accused Dipak Das assaulting the victim. 16. PW-6, Smt. Bithi Bhattacharjee, a neighbour of the victim stated at the trial that at the time of occurrence she was sleeping in her house. She woke up after hearing hue and cry in her neighbourhood and came out. From in front of her house she saw her neighbour Niti Nath Choudhury(PW-5) running. The PW saw her discharging urine and she was telling that somebody assaulted her. The PW also found the injured victim and a bleeding injury was seen on her scalp. The injured husband of PW-6 was found lying inside a drain. The PW then came back to her room. Her evidence could not be shaken to any extent in her cross examination. 17. The PW also found the injured victim and a bleeding injury was seen on her scalp. The injured husband of PW-6 was found lying inside a drain. The PW then came back to her room. Her evidence could not be shaken to any extent in her cross examination. 17. PW-7, Smt. Basanti Das another neighbour also saw the injured victim lying in her vegetable garden with bleeding injury on her scalp. According to the PW the victim was in her blouse and petticoat only and there was no Saree in her wearing. PW-8, Sanjoy Das a neighbour of the victim, also supported the prosecution case who saw the injured victim and Ashish Nath Choudhury alias Mintu (PW-3). Wife(PW-5) of Ashish Nath Choudhury was also heard crying in pain. The PW came to know from his neighbours that they were assaulted by accused Dipak Das. 18. PW-9, is the Investigating Officer of this case who carried out the whole investigation of the case and having found the case established against the petitioners, he submitted charge sheet against them. 19. PW-10, Dr. Gitesh Bhattacharjee is a Medical Officer who was posted at RGM Hospital, Kailashahar on 22.02.2011 on which the occurrence took place. On that day, injured Ashish Nath Choudhury (PW-3) was brought to the hospital from Kumarghat Rural Hospital. On examination PW found swelling and tenderness on the right area of his head. According to the PW the injury was caused by a blunt object. He prepared the injury report which was taken into evidence during trial and marked as Exbt.-7. 20. PW-11 is the scribe of the FIR who stated that he took down the FIR following the dictation of the informant and thereafter he read over the contents to the informant. The FIR was taken into evidence during trial and marked as Exbt. 1/2. In his cross examination he denied that he was habituated in writing false FIR. 21. There is, therefore, overwhelming evidence of eye witnesses in support of the fact that the petitioners outraged the modesty of the victim by removing the saree from her wearing. The victim categorically asserted at the trial that accused petitioner Uttam Sen @ Runu removed her saree by force and the other accused assaulted her. Other witnesses had seen her in her petticoat. The victim categorically asserted at the trial that accused petitioner Uttam Sen @ Runu removed her saree by force and the other accused assaulted her. Other witnesses had seen her in her petticoat. The evidence available on record demonstrates that the petitioners not only assaulted the victim, they did not also spare her neighbours who came to her rescue. Barring the minor contradictions in the evidence of the PWs as pointed out by learned counsel of the petitioners, their evidence with regard the allegations against the petitioners is consistent, coherent, trustworthy and reliable. Medical evidence with regard to the injuries sustained by the victim and other witnesses of the case also supports the charge of assault against the accused persons. In view of the evidence led by the prosecution and the attending facts and circumstances of the case, this Court is of the view that the Courts below did not commit any wrong in arriving at the conclusion of guilt of the petitioners. Their conviction and sentence is supported by evidence and well founded and as such the impugned judgment does not call for any interference in revision. 22. Having held so, the conviction and sentence of the petitioners are upheld and the revision petition stands dismissed. The petitioners are directed to surrender before the trial Court within a period of 2(two) months from today to suffer the sentence failing which the trial Court shall take steps in accordance with law to make them suffer the sentence. Pending applications, if any, shall also stand disposed of. Send down the LCR.