The prosecution must prove the elements of 'criminal force' or 'assault' to sustain a conviction under Section 354 IPC, which was not established in this case.

JUDGMENT :

BISWAJIT PALIT, J.

This appeal is preferred challenging the judgment and order of conviction and sentence dated 25.01.2024 delivered by Learned Sessions Judge, South Tripura, Belonia in connection with case No.S.T.36(Type-I) of 2021. By the said judgment Learned Trial Court has sentenced the convict 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. It was further ordered that if fine money is realized the same be handed over to the victim as compensation.

2. Heard Learned Counsel, Mr. Ratan Datta appearing for the appellant-accused and also heard Learned P.P., Mr. Raju Datta along with Learned Addl. P.P., Mr. R. Saha appearing on behalf the State-respondent.

3. In course of hearing, Learned Counsel for the appellant-accused first of all drawn the attention of this Court that in this case, no charge was framed under Section 354 of IPC by the Learned Trial Court against the appellant although after the completion of trial, Learned Trial Court found the appellant to be guilty under Section 354 of IPC and convicted him accordingly. Learned Counsel further submitted that from the evidence on record, it is clear that the prosecution before the Learned Trial Court has miserably failed to prove the charge levelled against the appellant but the Learned Trial Court failed to appreciate the evidence on record properly and convicted the appellant for which the interference of the Court is required. Learned 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 Learned Counsel there should be evidence of criminal force or assault. But in the given case there is no such evidence on record like that. Furthermore, no independent witnesses supported the case of the victim, even the Medical Officer also did not support the case of the victim. So, 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 Learned Trial Court. Learned Counsel for the appellant also submitted that Learned Magistrate who recorded the statement of the victim was not produced for examination by the prosecution. Even the FIR was not duly proved by the prosecution in this case. Finally, Learned Counsel also relied upon two citations which will be discussed later on.

4. On the other hand, Learned P.P., Mr. Raju Datta accompanied by Learned Addl. P.P., Mr. R. Saha appearing on behalf of the State-respondent submitted that from the contents of the FIR, it is clear that the present appellant committed the offence as alleged on the alleged day and furthermore, the appellant by the trend of cross-examination of the witnesses of the prosecution could not dismantle their evidence and according to Learned P.P., the citations as referred by Learned Counsel for the appellant are not applicable in this case and finally submitted that Learned Trial Court below after considering the evidence on record rightly and reasonably found the appellant to be guilty and convicted him accordingly for which there is no merit in the appeal and urged for dismissal of this appeal.

5. This present case was set into motion on the basis of an FIR laid by the victim (name withheld) as informant to the O/C, Baikhora P.S. alleging inter alia that on 03.12.2020 at about 5 p.m. in the evening, she went to a medical shop near Ramraibari PHC to administer two injections on her body for pain to her legs and body and that time the appellant-accused, Bibhishan Ghosh 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 rem