Tripura High Court
Sri Sanjoy Kumar Das @ Sanjoy Das vs The State Of Tripura on 8 January, 2021
Equivalent citations: AIRONLINE 2021 TRI 5
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. 64 of 2016
Sri Sanjoy Kumar Das @ Sanjoy Das
Son of Lt. Amulya Das
resident of Vill-Bakbabi
PS: Kadamtala,
District-North Tripura
---- Petitioner(s)
Versus
The State of Tripura
---- Respondent(s)
For Petitioner(s) : Mr. A. Acharjee, Adv.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 18.12.2020
Date of pronouncement : 08.01.2021
Yes No
Whether fit for reporting :
√
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
1. By means of this revision petition, the judgment & order dated 08.06.2016 delivered in Criminal Appeal 00000001 of 2016 by the Sessions Judge, North Tripura, Dharmanagar has been challenged. The learned trial court by judgment & order of conviction and sentence dated 23.12.2015 passed in Crl. Rev. P. 64 of 2016 Page 2 of 20 case No. ST (Type-2) 02 of 2015, convicted and sentenced the petitioner as follows:
Sl. No. Offence Sentence
1. For offence punishable RI for 1 (one) year and under section 363 IPC fine of Rs.5,000/- with default stipulation.
2. For offence punishable RI for 1 (one) year and under section 354 IPC fine of Rs.5,000/- with default stipulation.
This judgment & order of conviction and sentence passed by the trial court having been affirmed by the impugned judgment of the learned Sessions Judge, the aggrieved petitioner has preferred this criminal revision petition.
2. The facts of the case are as under:
Sri Sudhanya Nath, S/O-Sri Rabindra Nath of Dharmanagar lodged a written complaint with the Officer in Charge of Dharmanagar police station alleging, inter alia, that on 02.09.2013 in the morning when his 12 years' old daughter was going to her school, the petitioner, an auto driver, forcibly lifted his daughter on his vehicle and got her seated beside him on his seat and outraged her modesty inside the vehicle. As the petitioner did not stop the vehicle even after crossing her school, the victim jumped out of the vehicle to save herself. Sri Crl. Rev. P. 64 of 2016 Page 3 of 20 Madan Nath, driver of auto rickshaw bearing registration No. TR-02-A-2661, who was carrying passenger in his vehicle along the same road saw the petitioner lifting the victim into his vehicle and informed the father of the victim who reported the matter to police by lodging the FIR.
3. Based on his FIR, Dharmanagar P.S. case No. 166 of 2013 under sections 354, 366A and 511 of the Indian Penal Code (IPC in short) was registered and the investigation of the case was taken up.
4. During investigation, the statement of the victim under section 164(5) Cr.P.C was recorded wherein she supported the FIR case and stated that when she was going to school at about 10.30 am on 02.09.2013 to sit for her examination, the auto rickshaw of the petitioner stood in front of her and the petitioner driver offered a lift to her for taking her to her school. Initially, she disagreed. Though back seat of the vehicle was vacant, the petitioner driver asked her to sit with him on his seat. After she sat there, the petitioner started driving his vehicle with one hand and he kept the other hand on her breasts. When he did not stop the vehicle, inspite of crossing her school, she started shouting for help. Thereafter, she jumped from the vehicle to save herself. The petitioner driver then fled away with his vehicle.
Crl. Rev. P. 64 of 2016 Page 4 of 20
5. Sri Ashish Kr. Das, SI of police conducted the whole investigation of the case and on completion of investigation he submitted charge sheet No. 142 of 2013 against the petitioner for having committed offence punishable under sections 354, 366A, 323 and 511 IPC. The said charge sheet was received by the learned Jurisdictional Magistrate and cognizance of offence was taken. After the case was committed to the court of Sessions, it was transferred to the court of the Asstt. Sessions Judge, Dharmanagar for trial.
6. The learned trial court framed charges of offence punishable under sections 354 and 366 of the Indian Penal Code. After the charges were read over and explained to the petitioner, he pleaded not guilty to both the charges and claimed a trial. During trial, as many as 10 (ten) witnesses were examined on behalf of the prosecution including the first informant father of the victim [PW-1], the victim [PW-7], the medical officer [PW-8] and the investigating officer [PW-9]. Apart from the ocular testimony of these witnesses, 6 (six) documents were also introduced on behalf of the prosecution. After the closure of the prosecution evidence, statement of the accused under section 313 Cr.P.C was recorded where the accused petitioner stated that he did not drive the vehicle at the time of occurrence. It was also stated by him that Sri Madan Debnath had implicated him in a false case. He declined Crl. Rev. P. 64 of 2016 Page 5 of 20 to adduce any evidence on his defence. On appreciation of evidence the learned trial court held the accused guilty of offence punishable under sections 354 and 363 IPC and convicted him for both of the offences. Having recorded the reasons as to why the benefit of Probation of Offenders Act was not given to the petitioner, the learned trial court sentenced him as above. In appeal, the learned Sessions Judge affirmed the said conviction and sentence. Hence this criminal revision petition.
7. Heard Mr. A. Acharjee, learned counsel appearing for the petitioner as well as Mr. S. Debnath, learned Addl. P.P representing the State respondent.
8. Appearing for the petitioner, Mr. A. Acharjee, learned counsel submits that there is no evidence to suggest that the accused committed the alleged act. It is contended by learned counsel that it was school time when the occurrence allegedly took place and it was quite impossible for an auto driver to pick up a girl from road and outrage her modesty at that hour of the day in the midst of people and that too in an open vehicle. Further submission on behalf of the defence is that it was quite improbable that the girl would not have made any sound when the offence was being committed to her particularly when there were people and she could have easily cried for their help. It is further submitted by Mr. Acharjee, Crl. Rev. P. 64 of 2016 Page 6 of 20 learned defence counsel that the petitioner had a family consisting of his wife and children and it was quite unlikely that he would have outraged the modesty of a school going girl of her daughter's age. It is also submitted by Mr. Acharjee, learned counsel that the various contradictions and inconsistencies appearing in the evidence of prosecution witnesses were not taken into consideration by the learned trial court as well as the appellate court and as such the impugned judgment is liable to be set aside.
9. Mr. S. Debnath, learned Addl. P.P on the other hand submits that the accused petitioner by picking up a small girl from her way to school and outraging her modesty and committed a ghastly act for which he deserves punishment. According to learned counsel, the judgments of the courts below and their concurrent findings are based on proper appreciation of evidence and therefore the impugned judgment does not call for any interference in revision. Mr. Debnath, learned Addl. P.P, therefore, urges the court for dismissing the petition.
10. As noted, the learned trial court relied on the evidence of 10 (ten) prosecution witnesses for deciding the case. Among them, PW-1 is Sri Sudhanya Nath, father of the victim who is also the first informant of this case. The PW is a school teacher by occupation. On 02.09.2013 at around 11 Crl. Rev. P. 64 of 2016 Page 7 of 20 O'clock he was in the school when he received a call from his wife who told him that their daughter was admitted to Dharmanagar hospital. He rushed to the hospital immediately where he found his daughter [PW-7] lying with multiple injuries on her knees, hands and her treatment was in progress. She told the PW that when she was going to school from home at around 10.30 am, the auto rickshaw of the petitioner stopped in front of her near Joyram Chira mill. The driver offered a lift to her for going to school. Initially she disagreed. The petitioner kept pursuing her for boarding his vehicle. She then sat in the front seat with the petitioner driver. The petitioner started driving his vehicle with one hand and with the other hand he touched the breasts of the victim and other parts of her body. When his vehicle crossed her school, the victim jumped from his vehicle as a result of which she received the injuries. She reached her school with the injuries and told about the incident to her school teacher Smt. Rita Nath [PW-10]. The victim could not then tell the name of the driver. Sri Madanlal Debnath [PW- 5], helped PW-1 to identify the accused petitioner who was the driver of auto rickshaw bearing registration No. TR-02-A-2954. Immediately, thereafter, PW-1 lodged the FIR at the police station.
Crl. Rev. P. 64 of 2016 Page 8 of 20 In his cross examination, the PW stated that his wife came to know about the incident from the school of her daughter.
11. Sri Uttam Nath [PW-2] is the maternal uncle of the victim. According to the PW, his sister, who is the mother of the victim informed the PW that the victim received injuries in her hands, knees and legs by falling from an auto rickshaw on her way to school. Immediately, the PW went to the school of the victim from where he came to know that the victim was already shifted to hospital. The PW then came to the auto stand to identify the driver of the offending vehicle where he met Sri Madan Nath [PW-5] who told him that the auto rickshaw from which the victim fell belonged to the accused petitioner and the registration No. of the vehicle was TR-02-A-2954. The PW then went to hospital where he met the injured victim. The victim told him that the accused driver forcefully lifted her in his vehicle while she was going to her school who touched her breast and belly inside his vehicle. When she found that the vehicle was not taking any halt even after crossing her school, she jumped from the vehicle.
In cross examination it was suggested to the PW that he concocted the story in collusion with Sri Madan Nath. The PW denied the suggestion.
Crl. Rev. P. 64 of 2016 Page 9 of 20
12. Sri Mukul Debnath [PW-3] was a teacher of the school where the victim used to study in Class VI. On 02.09.2013 at around 11 am the victim appeared in the school with injuries on her hand, knees and legs. She was then crying. She told to her teachers where the PW was also present that when she was coming to school in the morning, driver of an auto rickshaw forcefully picked her up in his vehicle and got her seated beside him. When the auto rickshaw was crossing her school she asked the driver to stop. Despite her request the driver did not stop his vehicle. He then jumped from the vehicle and received the injuries.
In his cross examination, the PW stated that he is also a neighbour of the victim. The PW denied the suggestion of the accused that he deposed falsely.
13. Sri Animesh Debnath [PW-4] is the scribe of the ejahar (Exbt.1/1). According to the PW he wrote the ejahar after the informant stated the facts of the case to him.
In cross examination, the PW stated that the victim was in hospital when her father got the FIR written by him. The PW did not speak to the victim before writing the FIR.
14. Sri Madan Lal Debnath [PW-5] is an auto driver by occupation. He is also the maternal uncle of the victim. According to him when the accused was driving his vehicle bearing registration No. TR-02-A-2954 with the victim in his Crl. Rev. P. 64 of 2016 Page 10 of 20 vehicle, the PW was also driving his auto rickshaw from the opposite direction. At that time the PW was carrying passengers in his vehicle. The vehicle of the accused had no other passenger except the victim who was seen sitting on the front seat beside the driver. At around 11/11.30 am he received a telephone call from one Smt. Dipika Rani Nath who told the PW that the accused lifted the victim in his auto rickshaw from her way to school. The PW was also informed by the caller that she saw the victim sitting on the front seat of the vehicle beside the driver and the driver touched her body. The PW immediately reached the spot and saw the victim with the injuries. The PW then brought the victim to the hospital in his vehicle.
The PW was put to incisive cross examination. In his cross examination, the PW stated that one Rinku Nath was the owner of the offending auto rickshaw. The PW denied that he conspired with said Rinku Nath and falsely implicated the accused in the alleged offence. It was suggested to the PW that the victim jumped from the vehicle because she wanted to flee away without paying the fare which was denied by the PW.
15. Sri Dipak Nath [PW-6] was an employee posted in the CT scan section of Dharmanagar hospital. He was also the maternal uncle of the victim. On 02.09.2013 the victim was brought to the hospital in injured condition who told him that when she was going to her school in the morning the accused Crl. Rev. P. 64 of 2016 Page 11 of 20 forcefully lifted him into his vehicle and keeping one of his hands on the steering he was screening his body with his another hand.
In his cross examination the PW stated that police arrested the petitioner on the date of occurrence. The PW denied the suggestion of the accused that he gave false evidence against him.
16. PW-7 is the victim who supported the prosecution case. According to her the incident took place on 02.09.2013 when she was going to school from her house. All on a sudden an auto rickshaw stopped near her and the driver offered her a lift for going to school. She refused to board the vehicle and told the driver that her school was nearby and she was able to go on foot. The driver kept pursuing her for boarding his vehicle. She again refused the offer. The driver then forcibly picked her up and got her seated beside him. There was no other passenger in the vehicle at that time. Inside the vehicle one of his hands was on the steering and he placed the other hand on her chest. When the driver was crossing her school she asked him to stop the vehicle. Despite her request the driver did not stop the vehicle. Immediately she jumped from the vehicle and received injuries. After the incident she came to school and told madam Rita Nath [PW-10] about the Crl. Rev. P. 64 of 2016 Page 12 of 20 occurrence. Later on, her statement was recorded by a Magistrate.
In her cross examination she stated that while she was sitting in the vehicle of the accused she saw her maternal uncle Sri Madanlal Debnath [PW-5] driving his auto rickshaw on the same road. According to her, she returned home from hospital from where she was taken to police station and the FIR was lodged by her father. She came to know the name of the accused from Sri Madanlal Debnath and her father Sri Sudhanya Nath [PW-1]. She further stated that she saw the accused in the lock up of the police station on the very day of occurrence.
17. Dr. Sandipak Roy [PW-8] attended the victim after she was brought to hospital after the occurrence. The PW told that the victim sustained abrasion on her right knee and right elbow which according to the PW was caused due to friction for jumping from the auto rickshaw. He identified the injury report as Exbt.4.
In his cross examination it was suggested to the PW that he manipulated the injury report in coalition with the investigating officer which was denied by the PW.
18. Sri Ashish Kr. Das [PW-9] is the investigating officer of the case. According to him the charges against the accused Crl. Rev. P. 64 of 2016 Page 13 of 20 petitioner was established during investigation and therefore he submitted charge sheet against him.
19. Smt. Rita Nath [PW-10] was posted as an Assistant teacher at the school where the victim used to study in Class VI at the time of occurrence. On 02.09.2013 i.e. the date of occurrence, the victim came to the school with multiple bleeding injuries on her hand and legs. When the PW asked her about the reason of her injuries she told her that she jumped from a running auto rickshaw. The victim also told the PW that the accused had forcibly lifted her in his auto rickshaw despite her refusal and then he started touching different parts of her body with one of his hands getting her seated in the vehicle beside him. The victim jumped from the vehicle when the driver declined to stop the vehicle even after the vehicle crossed her school. The PW found the victim very frightened and she was crying. According to the PW, Sri Mukul Debnath and Sri Karnamani Debnath, teachers of the school brought the victim to hospital.
20. On appreciation of evidence, the learned trial court held that the accused lifted the victim into his vehicle against her consent and the consent of her legal guardian and despite the request of the victim he did not drop her in front of her school and as such an offence punishable under section 363 IPC Crl. Rev. P. 64 of 2016 Page 14 of 20 was established against him. The relevant paragraph of the trial court's judgment is as under:
"54. The reason is that even though the victim girl was taken to the auto rickshaw of the accused person at the relevant time on her way to school without any consent of her legal guardian that could not caste with any guilty intention of the accused person in case he could drop her in front of her school. But the moment the accused driver started to proceed with his running auto rickshaw taking the victim girl crossing her school and without dropping her there the guilty intention of accused person to kidnap her has been constituted and as such there was no consent of the legal guardian or the school teacher of the victim girl to carry the victim towards Kadamtala crossing her school. Accused person was supposed to drop the victim girl at her school and with this assumption the victim girl was lifted in the auto rickshaw. Thus when accused person crossed her school and also did not stop it in spite of her saying the intention of accused person to kidnap her or to do any other wrongful act has been constituted. Therefore, in my considered opinion accused person has been found guilty in committing the offence of kidnapping the victim girl on the relevant date, time and place which is punishable under section 363 of IPC. Since the offence under section 366 IPC. is an aggravated form of offence of kidnapping, accused can be convicted under minor offence under section 363 of IPC. in view of section 222 of Cr.P.C.
Hence point no. (ii) is decided in the affirmative in favour of prosecution while point no. (iii) is decided in the negative.
Crl. Rev. P. 64 of 2016 Page 15 of 20 Point no. (iv) Here I have to examine whether accused person has outraged the modesty of the victim girl on the relevant date, time and place of occurrence."
21. The learned trial court also held that the accused got the victim seated beside him though there was no other passenger in the vehicle and such conduct of him manifested his guilty intention. The learned trial court, therefore, believed the statement of the victim and convicted and sentenced the accused under section 354 IPC. Relevant paragraph 56 of the judgment is as under:
"It is also evident that accused person was unknown to the victim girl and it is quite improbable that she would falsely implicate the accused person. Here the circumstances itself reflect that accused person had intended to outrage the modesty of victim girl and in order to materialize such intention he voluntarily asked the victim girl to sit in his auto rickshaw repeatedly in spite of the saying of victim to go to her school by walk. Thereafter accused sat the victim in the front seat of the auto rickshaw just beside him though the front seat of auto rickshaw is meant for only its driver. The back seat of the auto rickshaw was evidently vacant but he did not ask the victim to seat in that passenger's seat. This relevant fact and conduct of accused driver clearly points to his guilty mind that he would outrage the modesty of victim girl by touching her body particularly her private parts like breast. It is also revealed in evidence that the accused also used criminal force upon victim as he held up her body by his one hand." Crl. Rev. P. 64 of 2016 Page 16 of 20
22. The learned Sessions Judge while affirming the conviction and sentence of the accused vide paragraph 20 of its judgment held as follows:
"Victim had got no enmity with the accused. So, victim has no cause to depose falsely against the accused- appellant affecting her own chastity. Ld. Trial court has passed a reasoned order. Of course, Ld. Trial court only convicted the appellant under sections 363 and 354 of IPC. It is clear from the evidence of the prosecution that the appellant being driver of the involved auto bearing no. TR 02A 2954 did not drop her at the school and outraged the modesty of the victim while she was on board and without dropping her in front of school, he kidnapped the victim and proceeded towards another destination of course with bad intention but failed to commit further offence as the victim due jumped down from the auto rickshaw. It is clear that due to jumping down from the auto the victim sustained injuries and somehow she was survived. In my considered opinion conviction of the appellant by the Ld. Trial court under sections 363 and 354 of IPC and passing sentence of RI for 1 year and fine of Rs.5,000/- for the offence u/s. 363 of IPC with further sentence of RI for 1 year and fine of Rs.5,000/- for the offence u/s. 354 of IPC with direction that both the sentences shall run consecutively is in the lower side. Considering the gravity of the offences and seriousness of the sincident, I think it is a very poor penalty and in adequate penalty. But since there was no counter appeal on behalf of the State or on behalf of the informant or the victim this court should not interfere in the findings of Ld. Trial court."
23. Learned Sessions Judge seems to have upheld the conviction of the petitioner under section 363 IPC on the Crl. Rev. P. 64 of 2016 Page 17 of 20 ground that the victim boarded his vehicle for going to school but the petitioner proceeded towards another destination without dropping her in front of her school which apparently manifested his bad intention of taking away the minor girl out of the keeping of her parents and constituted kidnapping within the meaning of section 361 IPC. At this stage it would be apposite to reproduce section 361 IPC which is as under:
"361. Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
24. From a plain reading of section 361 IPC, it appears that application of force or enticement is an essential element of kidnapping. In the instant case it has not been proved that the petitioner either forced the victim or in any manner enticed her to board his vehicle. The fact which has been established by evidence is that when the victim was going to her school, the petitioner met her on the way and offered her a lift in his vehicle for going to school. Initially she disagreed but owing to his constant persuasion the victim boarded his vehicle reluctantly and sat beside him on the front seat of the vehicle. Having realized that the petitioner did not stop his vehicle inspite of crossing her school, the frightened victim jumped from the vehicle. There is no evidence that the petitioner was Crl. Rev. P. 64 of 2016 Page 18 of 20 taking her to any unknown destination. Further there is no evidence that the petitioner in any manner terrorized or prevented her from shouting with a view to accomplish his mission. Even there is no evidence of any kind of enticement. Therefore, the conviction and sentence of the petitioner under section 363 IPC is not proper. As a result, his conviction and sentence under section 363 IPC is set aside.
25. In so far as the conviction and sentence of the petitioner under section 354 IPC is concerned, it is evident that the circumstances available on record clearly indicate to the guilt of the accused. There is no reason to disbelieve the victim who categorically stated that the petitioner persuaded her to board his vehicle and sit beside him even though the back seat was entirely vacant and there was no other passenger in his vehicle. The victims' evidence that the petitioner laid his hand on her chest while she was seated in his vehicle cannot also be disbelieved particularly when there is no proof of any kind of animosity of her towards the accused. The petitioner was a 12 years' old girl and quite mature to distinguish between good touch and bad touch. Evidently, the victim did not want a lift in the vehicle of the petitioner for going to her school. Rather she was very much reluctant to board his vehicle when she saw that there was no other passenger in the vehicle. She even told the petitioner that her school was nearby and she would walk to Crl. Rev. P. 64 of 2016 Page 19 of 20 her school. But, the adamant petitioner got her seated in his vehicle and that too on the front seat beside him even though there is no other passenger in the vehicle and all seats were vacant. Ultimately, the frightened victim jumped from the vehicle when the petitioner declined to stop his vehicle even after crossing her school. The whole circumstances made the courts below believe the statement of the victim that the petitioner outraged her modesty inside his vehicle. Having considered the evidence on record and the circumstances of the case, I find no reason to interfere with the findings of the learned Sessions Judge with regard to the conviction and sentence of the petitioner under section 354 IPC. The petitioner cannot derive any benefit from the decision of this High Court in Santosh Chandra Shil Vs. State of Tripura, (2017) 2 TLR 80 relied upon by learned counsel of the petitioner with regard to identification of the accused because the facts are totally distinguishable. Therefore, the conviction and sentence of the petitioner under section 354 IPC is upheld.
26. Resultantly, the revision stands partly allowed.
27. The petitioner who is on bail shall surrender before the trial court to suffer the sentence within a period of 2 (two) months failing which the learned trial judge shall take steps in accordance with law to make him suffer the sentence. Crl. Rev. P. 64 of 2016 Page 20 of 20 Send back the LC record along with a copy of the judgment.
JUDGE Rudradeep Crl. Rev. P. 64 of 2016