Tripura High Court
Sri Biswajit Debnath vs The State Of Tripura on 7 April, 2021
Equivalent citations: AIRONLINE 2021 TRI 156
Author: S. G. Chattopadhyay
Bench: S. G. Chattopadhyay
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HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P No.35/2020
Sri Biswajit Debnath,
Son of Late Manik Debnath,
Of Rajib Nagar, P.S- Manubazar,
District : South Tripura.
............... Petitioner(s).
Versus
The State of Tripura,
............... Respondent(s).
BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Petitioner(s) : Mr. A. Acharjee, Advocate. For Respondent(s) : Mr. S. Ghosh, Addl. Public Prosecutor.
Date of hearing : 3rd February, 2021.
Date of Judgment & Order : 7th April, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
[1] This petition has been filed challenging the impugned
judgment dated 10.01.2011 delivered by the Sessions Judge, South Tripura, Udaipur in Criminal Appeal No.01(1) of 2010 affirming the conviction and sentence of the petitioner under Sections 448 and 497 of the Indian Penal Code (IPC hereunder) passed by the Sub-Divisional Judicial Magistrate, Sabroom by his judgment dated 30.11.2009 in Case No.GR 62 of 2009.
Crl. Rev. P No.35/2020.
Page - 2 of 11 [2] The brief facts of this case are as under:-
The informant (name withheld to hide the identity of his wife) lodged a written complaint (FIR) with the Officer-in-Charge of Manubazar police station at Sabroom on 04.07.2009 alleging, inter alia, that at around 2 „O‟ clock in the night on 01.07.2009 he discovered that the petitioner and his wife were engaged in "unsocial activities" in the kitchen of his house. As soon as they noticed the informant, the petitioner fled breaking open the bamboo fencing of the kitchen. He left his shoes and the napkin(gamcha) of his wearing while fleeing away. The informant reported the matter to the local police station over telephone at about 3 „O‟ clock in the night. In the following morning, he informed the local Panchayet. A meeting was immediately convened by the Panchayet and the wife (name withheld) of the informant as well as the petitioner were called to the meeting. They confessed their guilt and assured before the Panchayet that they would not repeat the commission of such activities. But immediately after the meeting was over and the members of the Panchayet left, the accused petitioner along with his men started abusing the informant and threatened him with dire consequence. They had forcibly taken away his wife and eight years‟ old son to the house of the accused petitioner and warned him that in case of any police action against them, they would prosecute the informant by instituting several criminal cases against him. The informant again informed the Panchayet about the occurrence. He was then advised by the Panchayet to take resort to law. Then he lodged the FIR.
Crl. Rev. P No.35/2020.
Page - 3 of 11 [3] Based on his FIR, MNB PS case No.33 of 2009 under Sections 448, 497 and 323 read with Section 34 IPC was registered against the wife of the Informant (PW-1), petitioner Biswajit Debnath and his associates namely, Mithun Banik and Nitta Hari Banik and investigation of the case was endorsed to Sri P.K. Dey, Sub-Inspector of Police of Manubazar police station.
[4] During investigation, the I.O visited the crime scene. He had drawn up hand sketch map(Exbt.3) with a separate index thereof (Exbt.4) by indicating the material locations at the crime scene. Thereafter he met the material witnesses of the case including the informant, examined them and recorded their police statements under Section 161 Cr. P.C. His investigation revealed commission of offence punishable under Sections 448 and 497 IPC by the petitioner and commission of offence under Section 323 IPC by the wife of the informant. Accordingly, the Investigating Officer submitted charge sheet No.30 of 2009 dated 30.08.2009 against the petitioner and the wife of the informant.
[5] The Sub-Divisional Judicial Magistrate, Sabroom received the charge sheet and took cognizance of offence punishable under sections 448, 497 and 323 IPC and proceeded with the trial of the case. [6] At the commencement of trial the following charges were framed against the petitioner:
Crl. Rev. P No.35/2020.
Page - 4 of 11 "That, you on 09/07/2009 at night about 2 a.m. was found inside the kitchen room of the house of Complainant and thereby committed house trespass by entering into his house i.e. in the kitchen room in order to committing the offence of adultery and that you thereby committed an offence punishable u/s 448 of the Indian Penal Code.
A N D That, you on the same day, at the same time, in the same place committed adultery with the wife of the complainant namely (name withheld to hide identity) knowing her to be the wife of the complainant and without the consent of the complainant and that you thereby committed an offense punishable u/s 497 of the Indian Penal Code and within the cognizance of this court.
And I hereby directed you be tried on the said charge"
[7] The charge framed by the trial Court against the wife of the informant is as under:
"That, the allegation is brought by the prosecution against you is that on 09/07/2009 at night at about 2 a.m the complainant of this case found you and one Biswajit Debnath inside the kitchen room of his house in a compromise position, seeing him accused Biswajit Debnath fled away by breaking the fencing of his kitchen room while you gave a teeth bite on the hand of the complainant voluntarily causing hurt to the complainant of this case.
And thereby you committed an offence punishable u/s 323 of the IPC within the cognizance of this court."
[8] Both of the accused pleaded not guilty to the charges and desired to stand the trial.
[9] In the course of trial prosecution examined as many as eight witnesses (PW-1 to PW-8) including the informant and the Investigating Officer and relied on four documents (Exbt.1 to Exbt.4) in order to prove the charges against the accused persons. After the recording of prosecution evidence was over, both of the accused were examined under Crl. Rev. P No.35/2020.
Page - 5 of 11 Section 313 Cr. P.C by the trial Court. In reply, they pleaded innocence and declined to adduce any evidence on their defence.
[10] At the conclusion of trial, the learned trial Court having appreciated the evidence on record and the submissions of learned counsel representing the parties held the petitioner guilty of offence punishable under Sections 448 and 497 IPC and convicted him for those offences. After hearing him on the question of sentence the learned trial Court sentenced him to suffer R.I. for six months for commission of offence punishable under Section 448 IPC and R.I. for two years for commission of offence punishable under Section 497 IPC. The learned trial court held the wife of the informant not guilty of the offence under Section 323 IPC and acquitted her. The petitioner challenged his conviction and sentence in appeal before the Sessions Judge, South Tripura Judicial District, Udaipur (as it was then). The appellate Court re-
assessed the evidence and held that the charges under Section 448 and 497 IPC were proved against the petitioner and therefore, the learned Sessions Judge upheld the conviction and sentence of the petitioner by setting aside his appeal. Hence, this criminal revision petition.
[11] While arguing on behalf of the appellant, Mr. A. K. Acharjee, learned Advocate has contended that the charge under Section 448 IPC against the petitioner does not survive because there is no evidence against him that he trespassed into the house of the informant for committing any offence. According to Mr. Acharjee, learned counsel in Crl. Rev. P No.35/2020.
Page - 6 of 11 absence of proof of house trespass an accused cannot be punished under Section 448 IPC. It is further argued by Mr. Acharjee that house trespass is defined under Section 442 IPC. Section 442 IPC contemplates that whoever commits criminal trespass is said to commit house trespass and criminal trespass as defined under Section 441 IPC denotes that whenever a person enters into the property in possession of another to commit an offence he can be said to have committed criminal trespass. Learned counsel therefore, argues that there is no evidence against the petitioner that he entered into the house of the informant to commit an offence and in these circumstances his conviction under Section 448 IPC is not sustainable.
[12] With regard to the conviction of the petitioner under Section 497 IPC, Mr. Acharjee learned Advocate submits that nowhere in his FIR the informant (PW-1) stated that he had seen the petitioner engaged in sexual intercourse with his wife. It is argued by Mr. Acharjee that sexual intercourse is the gravamen of the offence punishable under Section 497 IPC and in absence of any evidence of sexual intercourse, the conviction and sentence of the petitioner under Section 497 IPC is liable to be set aside. Further submission on behalf of the petitioner is that the FIR was lodged four days after the occurrence and there was no explanation of delay in lodging the FIR particularly, when the police station was nearby the home of the informant. Finally, it is argued by Mr. Acharjee, learned counsel of the petitioner that the Apex Court in the case of Joseph Shine Vrs. Union of India, reported in (2019) 3 SCC 39 has struck down Crl. Rev. P No.35/2020.
Page - 7 of 11 Section 497 IPC as unconstitutional and therefore, in view of the decision of the Apex Court the conviction and sentence of the petitioner under Section 497 IPC is liable to be set aside.
[13] This Court has scrutinized the records afresh and finds that the informant deposed at the trial as PW-1 and stated that at the material time he woke up from sleep and found that his wife was not on the bed. He noticed light in the kitchen. Having gone to the kitchen he saw his wife having sex with the petitioner. Seeing this, he caught hold of the petitioner and started shouting. His wife then gave a teeth bite on the wrist of his left hand. As a result, the accused got freed from his hold and fled. Following his cry, his elder brother and his wife also woke up from sleep and appeared at the place of occurrence. The petitioner left his sleeper (Chappal) and napkin (Gamcha) at the place of occurrence. People from the neighbourhood also appeared there and the matter was informed to the police station. The parents of the wife of the informant were also informed, who immediately came to their house and it was decided by all of them that the matter would be reported to Panchayet for a settlement. Accordingly, Panchayet meeting was held where the petitioner and the wife of the informant confessed their guilt and assured before the Panchayet that they would not repeat the commission of the offence. But immediately after the Panchayet meeting was over and the members of the Panchayet left, the petitioner and his men including his Crl. Rev. P No.35/2020.
Page - 8 of 11 wife started threatening the PW with dire consequences, therefore, he lodged the FIR at the police station.
[14] PW-2, Hrishikesh Banik, brother of the informant also supported the case against the petitioner. He stated at the trial that following the cry of his informant brother he arrived at his home along with his wife and found the petitioner and the wife of his brother in the kitchen. His informant brother was also there. He noticed scuffling between his brother and the petitioner, suddenly the petitioner fled away from there. Thereafter a Panchayet meeting was held to settle the matter where the petitioner and the wife of his brother undertook that they would not indulge in such activities in future. [15] PW-3 is the elder brother‟s wife of the informant. She also supported the prosecution case by saying that soon after she arrived at the kitchen of her informant brother-in-law she saw the petitioner in the hold of her brother-in-law. At that time the wife of the informant gave a teeth bite on the wrist of her brother-in-law and in that opportunity the petitioner fled.
[16] PW-4, Surja Kanta Banik also heard noise at night from the house of the informant which was located at a distance of 50 cubits from his house. When he arrived there, he heard the informant shouting. He came to know from the informant that the petitioner was caught red handed by him while he was having sex with his wife. The PW was also told by the informant that he caught hold of the petitioner to prevent his Crl. Rev. P No.35/2020.
Page - 9 of 11 escape but his wife gave a teeth bite on the wrist of the informant as a result of which the petitioner could flee away. [17] PW-5, Santosh Debnath also stated at the trial that he came to know about the occurrence after the informant visited him at his house immediately after the occurrence and told him about the occurrence. [18] PW-6, Badal Banik also came to know about the occurrence from the informant immediately after the occurrence. The informant told the PW that he noticed his wife and the petitioner having sex in the kitchen of his house.
[19] PW-7 is the Investigating Officer of the case who stated that the materials collected by him during investigation proved the charges against the accused persons and therefore, he filed charge sheet against the petitioner and the wife of the informant.
[20] PW-8, Dulal Ch. Banik simply stated that he scribed the FIR at the dictation of the informant. He identified the FIR written by him which was marked as Exhibit-1 during the trial.
[21] It has surfaced from the record that there are inconsistencies and infirmities in the evidence of the prosecution witnesses. While the informant PW-1 is saying that he caught hold of the accused after noticing him having sexual intercourse with his wife and the accused petitioner managed to flee away after the wife of the informant had given Crl. Rev. P No.35/2020.
Page - 10 of 11 a teeth bite on his wrist, brother of the informant and his wife as PWs 2 and 3 deposed that even after they arrived at the house of the informant they saw the petitioner scuffling with the informant. In view of such discrepancy in the evidence of these witnesses, the presence of the petitioner at the place of occurrence appears to be doubtful. However, counsel of the petitioner submits that the case has no merit since the Apex Court has struck down Section 497 IPC as unconstitutional in the case of Joseph Shine Vrs. Union of India(supra). In the said judgment the Apex Court has held as under:
"220. We hold and declare that:
220.1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution;
220.2) Section 497 is based on gender stereotypes about the role of women and violates the non-
discrimination principle embodied in Article 15 of the Constitution;
220.3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and 220.4) Section 497 is unconstitutional."
At the concluding paragraphs of the judgment the Apex Court has held as under:
"282. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :
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Page - 11 of 11 (282.1) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
(282.2) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.
(282.3) The decisions in Sowmithri Vishnu v. Revathi and W. Kalyani hereby stand overruled."
[22] In view of the said decision of the Apex Court, the conviction and sentence of the petitioner under Section 497 IPC is not sustainable. As discussed, the charge of offence punishable under Section 448 IPC could not also be proved against the petitioner beyond reasonable doubt. [23] Resultantly, the impugned judgment is set aside and the revision petition is stands allowed. The case is disposed of.
Pending application(s), if any, shall also stand disposed of. Send down the LCR.
JUDGE Dipankar Crl. Rev. P No.35/2020.