The Tripura High Court has set aside conviction in case related to Section 354 IPC on account of lack of evidence to prove use of criminal force or assault on the victim.

The Court was considering an Appeal against order of the Trial Court sentencing the Accused to suffer R.I. for one year and to pay fine of Rs.5,000/- for commission of offence punishable under Section 354 of IPC, in default to suffer further S.I. for six months.

The single-bench of Justice Biswajit Palit observed, "...., prosecution has failed to prove the FIR or to the statement of the victim as per law. Even from the statement of the victim, recorded by the Court, the ingredients of offence of using ‘criminal force or assault’ upon the victim could not be established by the prosecution. So, in absence of clear and specific evidence on record, simply on the evidence on record of the victim, there is no scope here in this case to presume the appellant to be guilty and prosecution before the Learned Trial Court has failed to prove the case beyond reasonable doubt and the Learned Trial Court below has failed to appreciate the evidence on record properly for which this Court feels it necessary to interfere with the judgment delivered by the Learned Trial Court."

The Appellant was represented by Advocate Ratan Datta while the Respondent was represented by Public Prosecutor Raju Datta.

Facts of the Case

In the FIR, it was alleged by the victim that when she went to the medical shop to administer two injections on her body for pain to her legs and body the appellant started to give massage on her body and on the pretext of giving massage to her body, he removed all her wearing apparels and taking the chance to physically abuse her, he removed all her clothes and tried to rape her by touching her whole body and also tried to kill her by pressing her throat. She cried loudly and pushed him and somehow she saved herself. On the basis of the FIR, under Section 341/354 (B)/354 (A)/307 of IPC against the appellant and the case was endorsed to the concerned I.O. for investigation. The Trial Court framed charge against the appellant under Section 354 (B)/354 (A)/341/307 of IPC and thereafter, proceeded to record evidence of the witnesses of the prosecution and after recording evidence of the witnesses of the prosecution proceeded to examine the appellant under Section 313 of Cr.P.C. where the appellant denied to adduce any witnesses in support of his defence and finally, on conclusion of trial, convicted the appellant.

The Counsel for the Appellant pointed out that no charge was framed under Section 354 of IPC by the Trial Court against the appellant although after the completion of trial, Trial Court found the appellant to be guilty under Section 354 of IPC and convicted him accordingly. He further further submitted that from the evidence on record, it is clear that the prosecution before theTrial Court miserably failed to prove the charge levelled against the appellant but the Trial Court failed to appreciate the evidence on record properly and convicted the appellant for which the interference of the Court is required. The Counsel also submitted that even from the evidence of the victim, it is clear that the victim in course of her examination only stated that the accused touched her body but to attract the charge under Section 354 of IPC, according to the Counsel there should be evidence of criminal force or assault but in the given case there is no such evidence on record like that. It was also asserted that no independent witnesses supported the case of the victim, even the Medical Officer also did not support the case of the victim. It was thus contended that in absence of cogent and corroborating evidence on record, there is no scope to sustain the charge levelled against the appellant and urged for acquitting the appellant from the charge of this case by setting aside the judgment of the Trial Court. The Counsel also cited Naresh Aneja alias Naresh Kumar Aneja vs. State of Uttar Pradesh and Anr. and Somasundaram Alias Somu vs. State of Rep. by the Deputy Commissioner of Police.

Reasoning By Court

At the outset, the Court was of the view that it is evident from the evidence on record, that to the alleged place of occurrence excepting the victim, no other persons were present as all the witnesses who are produced by the prosecution appeared to the place of occurrence after the alleged occurrence. The Court next observed that the I.O. in course of investigation could not collect any injury report in respect of the victim nor could collect any injury report of the alleged accused. Even no Medical officer who appeared on behalf of the prosecution did whisper anything as to whether they found any injury mark on the body of the victim or to the alleged accused also. Furthermore, there is also no evidence on record that the victim went to the shop of the alleged accused-appellant for pushing of injection. The Court also pointed out that the victim only stated that the accused only touched her body and did not specifically mention anything as to how the appellant-accused committed the offence to substantiate the charge under Section 354 of IPC for which he was convicted.

The Court agreed with Counsel for the Appellant's submission that the ingredients of offence of using ‘criminal force or assault’ upon the victim could not be established by the prosecution.

The Appeal was accordingly allowed.

Cause Title: Sri Bibhishan Ghosh vs. The State of Tripura

Appearances:

Appellant- Advocate Ratan Datta, Advocate Aditya Baidya

Respondent- Public Prosecutor Raju Datta, Additional Public Prosecutor R. Saha'

Click here to read/ download Order/ Judgement





Tripura High CourtJustice Biswajit Palit

Sheetal Joon