High Court of TripuraCrl.A./30/2011dismissed

Buddhadeb Debnath @ Budha v. State Of Tripura

2015-01-17Hon'Ble Mr. Justice S. Talapatra19 pages

INTHEHIGHCOURTOFTRIPURA AGARTALA CRL.A.No.30of2011. ShriBuddhadebDebnath@Budha,

.........Appellant -Versus- TheStateofTripura ........Respondent BEFORE THEHON'BLEMR.JUSTICES.TALAPATRA

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:03.11.2014

$%& ' :17.01.2015

: Yes No √ JUDGMENT&ORDER

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$ & )& @ Inviewoftheabovediscussionintheprevious paragraphofthejudgmentIamoftheopinion thattheprosecutionisnotsuccessfultoprove the charge under Section 376(1) read with Section511ofIndianPenalCode.Ontheother hand, the evidence proved by the prosecution is that accused entered into the hut of the prosecutrix, covered her mouth with his hand, started pulling her dress and also struggled with her and this clearly shows that the accused outraged the modesty of the prosecutrix on the date and time of alleged incident and thus the offence under Section 354ofIndianPenalCodecanbesaidtobewell proved against the accused.

Offence under Section 354 of Indian Penal Code is a minor offencethantheoffenceunderSection376(1) readwithSection511ofIndiaPenalCode.The charge is against the accused for commission of major offence but the facts proved in this case is a minor offence to that of major offence.FromtheevidenceonrecordIamalso of the opinion that the prosecution is successful also to prove the charge under Section448ofIndianPenalCode.Accordingly, theaccusedBuddhadebDebnathisfoundguilty for commission of offence punishable under Section 448 and 354 of Indian Penal Code for whichheisliabletobepunished. [5] !

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1 PulinBihariRoyvs.Stateof Tripura

(2012)6GLR1386

@ The above illustration makes it clear that section 354 cannot be regarded as a minor offencetothatofanoffenceundersection376 of IPC. Where the allegation of rape fails, under the circumstances, on the same bundle of fact, the accused cannot be punished for

outrage of modesty, unless the ingredients thereofastothecommissionofassaultoruse of criminal force, by the accused on the prosecutrix, with the intention of outrage of modesty or knowing it to be that the will therebyoutragehermodesty,isestablished.

" # $ % "16. What is mean by 'a minor offence' for the purpose of section 222 of the Code? Although the said expressionisnotdefinedintheCode it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishableamongthemwithalessor sentence can be regarded as minor offencevisIàIvistheotheroffence." Composition of offence under section 354 of IPC is different from the formation of the offence under section 376 of IPC and hence, the former cannot be regarded as a minor offencevisIàIvisthelatter. [6]

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33* 51 @ "441. Criminal trespass : Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possessionofsuchproperty,

or having lawfully entered into or upon such property, unlawfully remains there with intent therebytointimidate,insultorannoyanysuch person,orwithintenttocommitanoffence, issaidtocommit'criminaltrespass'." [7] & " #

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$ @ "On 15.04.10 at about 3 pm I was in my inI laws house and was trying to get sleep of my childagedabout3years.Atthattimeaccused BuddhaDeb,myneighbourcameinsidethehut of mud wall and covered my mouth with his hand and started struggling with me. I was lyingonthefloorofthehutwithmychildbut some how I could succed to raise alarm when mysisterinlaw AnjaliDebnath andmother in law Milan Debnath came inside the hut and theyalsostartedraisingalarm.Onseeingthem

the accused left the place and ran away through a tilla land in the back side of our house. The accused covered my mouth and startedstrugglingtocommitrape.Myhusband andbrotherinlaw AshitDebnath were absent in the house and they were in our shop. My husband,brotherinlawandothersonhearing our alarm came to the house. I narrated the incident to my husband, brother in law, sister/motherinlawandothers.Onthatnight at about 9/9I30 pm I lodged complaint to Madhupur Outpost. The complaint was written bymybrotherinlawAshitDebnathaspermy statement.AccusedBuddhaDebnathispresent todayinthedockandidentifiedbythewitness. This is the complaint submitted by me. On identificationthesignature oftheinformant is markedasExhibitI1." 5 7&

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3 @ The incident occurred on 15.04.10 at about 3 pm.Ourhouseiswithinthesamecomplex.My house is in the eastern viti and the house of & '

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$ myself and mymotherinlawwenttothathouseand found accused Buddha Debnath inside the hut andonseeingushefledaway.Onarrivalinthe houseIsawthattheaccusedwaspullingsaree of & '

$ My husband and the husband of & '

$ were in the shop and they came later. On being asked & '

$ told me that the accused cameinsidethehutandstartedstrugglingwith her with illegal motive and intention. Accused Buddha Debnath is present today in the dock. Myhusband,brotherinlawandothersnamely, Partha,Madhab,Tapan,BishuSahacamelater onhearingouralarm.

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7 Mrs.RupanDeolBajajandanother vs.KanwarPalSinghGillandanother,

(1995)6 SCC 194 6

State of Punjab vs. MajorSingh,

AIR1967SC63

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7 Tarkeshwar Sahu vs. StateofBihar,

(2006)8SCC5606

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$ 6 6@ 22. In the backdrop of settled legal position, when we examine the instant case, the conclusion becomes irresistible that the conviction of the appellant under Sections376/511IPC is wholly unsustainable. What to talk about the penetration, there has not been any attempt of penetration to the slightest degree. The appellant had neither undressed himself nor even asked the prosecutrix to undress so there was no questionofpenetration.Intheabsenceofany attempt to penetrate, the conviction under Section376/511IPC is wholly illegal and unsustainable. 23. In the instant case, the accused has been charged with Sections376/511IPC only.

In absenceofchargeunderanyothersection,the question now arises I whether the accused should be acquitted; or whether he should be convicted for committing any other offence pertainingtoforciblyoutragingthemodestyof agirl.

the accused is charged with a major offence andthesaidchargeisnotproved,theaccused maybeconvictedoftheminoroffence,though hewasnotchargedwithit.Section222Cr.P.C. readsasunder: 222. ( $ $$

"$.I(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combinationisproved,buttheremaining particulars are not proved, he may be convicted of the minor offence, though hewasnotchargedwithit. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convictedoftheminoroffence,although heisnotchargedwithit. (3) When a person is charged with an offence, he may be convicted of an attempttocommitsuchoffencealthough theattemptisnotseparatelycharged.

(4) Nothing in this section shall be deemedto authoriseaconviction of any minor offence where the conditions requisitefortheinitiationofproceedings inrespectofthatminoroffencehavenot beensatisfied. 24.Inthissection,twoillustrationshavebeen given which would amply describe that when an accused is charged with major offence and the ingredients of the major offence are missing and ingredients of minor offence are made out then he may be convicted for the minoroffenceeventhoughhewasnotcharged with it. Boththeillustrationsgiveninthesaid sectionreadasunder: (a))ischargedunderSection407ofthe Penal Code (45 of 1860) with criminal breach of trust in respect of property entrustedtohimasacarrier.

Itappears, that he did commit criminal breach of trust under Section406of that Code in respect of the property, but that it was notentrustedtohimasacarrier.Hemay be convicted of criminal breach of trust underthesaidSection406. (b))ischargedunderSection325ofthe Penal Code (45 of 1860), with causing grievous hurt.

on grave and sudden provocation. He may be convicted under Section335of thatCode. 25. In *+

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/ this Court had an occasion toexaminethesimilarquestionoflaw.Inthis case,theaccusedwaschargedandtriedunder Section302of the Indian Penal Code but ingredients of Section302were missing but ingredients of Section306were present, therefore, the Court deemed it proper to convert the conviction of the appellant from Section302to Section306IPC. In this case, it was urged that the accused cannot be tried under Section306IPC because the accused werenotputtonoticetomeetachargeunder Section306IPC and, therefore, they are prejudiced by not framing a charge under Section306IPC; therefore, presumption under Section113Aof IndianEvidenceActcannotbe drawn and consequently a conviction under Section306IPC cannot be awarded.

According to this Court, in the facts and circumstances, Section306was attracted and the appellants' convictionunderSection302IPCwassetaside and instead they were convicted under Section306IPC. 26.

!!hadanoccasionto deal with Section222of the Code of Criminal Procedure. The Court came to the conclusion thatwhenanaccusedischargedwithamajor offenceandiftheingredientsofmajoroffence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The relevant discussion isinparagraphs16,17and18ofthejudgment, whichreadasunder: "16.Whatismeantby"aminoroffence" for the purpose of Section222of the Code? Although the said expression is not defined in the Code it can be discerned fromthecontextthatthetest of minor offence is not merely that the prescribed punishment is less than the major offence.

The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as a minoroffencevisIàIvistheotheroffence.

17.Thecompositionoftheoffenceunder Section304IBIPC is vastly different from the formation of the offence of murderunderSection302IPCandhence theformercannotberegardedasminor offencevisIàIvisthelatter.However,the position would be different when the charge also contains the offence under Section498IAIPC(husbandorrelativeof husband of a woman subjecting her to cruelty). As the world "cruelty" is explainedasincluding,interalia, 'harassment of the woman where suchharassmentiswithaviewto coercingheroranypersonrelated to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.' 18.

Sowhenapersonischargedwithan offence under Sections302and498I AIPC on the allegation that he caused thedeathofabrideaftersubjectingher toharassmentwithademandfordowry, withinaperiodof7yearsofmarriage,a situationmayarise,asinthiscase,that the offence of murder is not established as against the accused. Nonetheless, all other ingredients necessary for the offence under Section304IBIPC would stand established. Can the accused be convicted in such a case for the offence underSection304IBIPCwithoutthesaid offenceformingpartofthecharge?" 27. On careful analysis of the prosecution evidence and documents on record, the appellantcannotbe held guiltyforcommitting an offence punishable under Sections376/511IPC.

Accordingtotheversion of the prosecution, the appellant had forcibly taken the prosecutrix to his gumti for committing illicit intercourse with her. But before the appellant could ravish the prosecutrix, she raised an alarm and immediately thereafter, her father PW1 Ram CharanBaithaandothercoIvillagersresidingin the vicinity assembled at the spot and immediately thereafter, the appellant and the prosecutrixcameoutoftheGumti.Inthisview of the matter, no offence under Sections376/511IPCismadeout. 28.

whether the offence of the appellant falls within the four corners of other provisions incorporatedinthe Indian PenalCode relating to outraging the modesty of a woman/girl underSections366and354 29.Section366IPCissetoutasunder: "/##. $ " $

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" I Whoeverkidnapsorabductsanywoman with intent that she may be compelled, orknowingittobelikelythatshewillbe compelled, to marry any person against her will, or in order that she may be forcedorseducedtoillicitintercourse,or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liabletofine;andwhoever,bymeansof criminal intimidation as defined in this Code or of abuse of authority or any othermethodofcompulsion,inducesany womantogofromanyplacewithintent that she may be, or knowing that it is likelythatshewillbe,forcedorseduced toillicitintercoursewithanotherperson shallbepunishableasaforesaid."

30. The essential ingredient of the offence punishableunderSection366IPCisthatwhen a person has forcibly taken a minor girl with the intention as specified in that section, then the offence is clearly made out. In the instant case, the appellant at about 1.30 a.m. has forcibly taken the prosecutrix/victim to his gumti with the intention of committing illicit intercoursethentheoffencecommittedbythe appellantwouldfallwithinthefourforecorners ofSection366IPC.Inourconsideredview,the essentialingredientsoftheoffencepunishable under Section366IPC are clearly present in this case. We deem it appropriate to briefly reproducetheratioofsomedecidedcases. 31.

In 0 1 % )20 -// 0"-3theFullBenchhasobservedasunder: "Theintentionoftheaccusedisthebasis and the gravamen of an offence under Section366..... in considering whether an offence has been committed under this section, the volition, the intention andtheconductofthe woman are'nihil ad rem', except insofar as they bear upon the intent with which the accused kidnapped or abducted her.

accused kidnapped or abducted the woman with the necessary intent, the offence is complete whether or not the accused succeeded in effecting his purpose, and even if in the event the womaninfactconsentedtothemarriage ortheillicitintercoursetakingplace." / This Court in0+$

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observedas under: Where the Courts had given cogent and convincing reasons for recording their finding that the accused had kidnapped the victim girl with intent to seduce her to illicit intercourse, conviction of accused under Section366was not interferedwith. 33. The High Court of Delhi in4 + " % -3#

// 5indicated that in what circumstances an offence under Section366IPC is made out. In thiscase,theCourt, while dealing with a case under Section366IPC, observed as under: (Crimesp.336,para5). Where from the statement of prosecutrix,agirlofsixyearsageitwas evidentthattheaccusedtookheronthe pretext of getting her some biscuits to publictoiletstookoffhersalwarandalso hisownpantmadehertolieonthefloor and bent down on her when he was caught hold by a watchman in the locality,theaccusedwouldnotbeguilty ofanattempttorapehoweverhewould be guilty of an offence under Section366IPC. 34. In6 % --!

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. 8 the High Court of Bombay observedasunder: "The accused were alleged to have kidnappedthegirlbelow16yearsofage from the lawful guardianship of her parents and taken her to another city. The coIaccused had simply met the girl andhadnotinstigatedhertoaccompany the accused. Hence, her conviction was setaside.Sofaraccusedwasconcerned, his offence of kidnapping was proved beyond all doubt and he was convicted Under Sections363/366IPC. Accused was however acquitted of the charge of rapeUnderSection375IPCashymenof girl was intact and there were no

outward sign of injuries or violence suggesting the sexual intercourse and consequently no rape could be said to havetakenplace." 35.Intheinstantcase,theactoftheaccused proves that during the kidnapping of the prosecutrixorforciblytakinghertothegumti, theaccusedhadintentionorknewitlikelythat the prosecutrix would be forced to have illicit intercourse. Hence, it is not a mere case of kidnapping for indecent assault but the purposeforwhichkidnappingwasdonebythe accused has been proved. It is a different matter that the accused failed at the stage of preparationofcommittingtheoffenceitself. 36.

In view of the foregoing facts and circumstances of the case, we are of the opinion that the crime committed by the accusedwasatinitialstageofpreparation.The offence committed does not come within the purview of offence punishable under Sections376/511IPC. The offence committed squarely covers the ingredients of Sections366and354IPC. The appellant was charged under Sections376/511IPC but on invoking the provisions of Section222of the Code of Criminal Procedure the accused charged with major offence can always be convicted for the minor offence, if necessary ingredientsofminoroffencearepresent. 37.

Onthebasisofevidenceanddocumentson record,inourconsideredview,theappellantis also guilty under Section354IPC because all the ingredients of Section354IPC are present intheinstantcase. 354.

" $ 9: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either descriptionforatermwhichmayextend totwoyears,orwithfine,orwithboth." [20] 5

TarkeshwarSahuvs. StateofBihar @

58. We have carefully analyzed the provisions pertaining to outraging of the modesty of a woman/girlunderSections376,366and354 of the Indian Penal Code. This exercise was undertakentoclearlyspelloutambitandscope of offences under these provisions. On the basisoftheevidenceanddocumentsonrecord, we are of the considered opinion that the conviction of the appellant under Sections376/511IPC is wholly erroneous and unsustainable and consequently, the judgmentsoftheHighCourtandthetrialcourt aresetaside. 59. On evaluation of the entire evidence and documents on record, in our considered view, the appellant is clearly guilty of the offences under Sections366and354IPC.

In the facts and circumstances of this case, the ends of justice would be subserved by convicting the appellant under Sections366/354IPC. The appellant is sentenced to undergo imprisonment for five years under Section366IPC. The appellant is also convictedunderSection354IPCandsentenced totwoyearsrigorousimprisonment.Wedirect boththesentencestorunconcurrently. [Emphasisadded] [21] 5 Tarkeshwar Sahu vs.

Raja Vs. State of Rajasthan

in 1998 Cri.LJ. 1608 (Rajasthan)

TarkeshwarSahuvs.StateofBihar,

Raja Vs.StateofRajasthan

( "Theaccusedtooktheminortoasolitary place but could not commit rape. The conviction of accused was altered from Section376/511to one Under Section354." [22] A

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