The court upheld the conviction under minor offences despite failure to substantiate major charges, emphasizing mens rea in determining the conviction under Section 354 IPC.

1. This appeal by the convict, hereafter referred to as the appellant, questions the legality of the judgment of conviction dated 10.08.2011 delivered in case No. S.T. 69 of 2010 by the Addl. Sessions Judge, Court No.3, West Tripura, Agartala convicting the appellant for committing offence punishable under S.448 and S.354 of the IPC. As consequence of the said conviction, the appellant has been sentenced to suffer rigorous imprisonment for one year for committing offence punishable under S.448 of the IPC. and rigorous imprisonment for two years for committing offence punishable under S.354 of the IPC. with a direction that the sentence shall run consecutively.

2. On 15-04-2010 the prosecutrix, the name withheld for protecting her identity by filing a written Ejahar disclosed that the appellant suddenly entering in her room at about 3 o'clock in the evening on 15.04.2010 tried to commit rape by pressing her mouth. On resistance, the appellant scuffled with her and the prosecutrix raised alarm. Even her child started crying. In response to such alarm, her sister - in - law, her husband's elder brother's wife, and mother - in - law rushed to her room when the appellant fled away. She has further disclosed that no male members were available at that hour.

3. Based on the said written Ejahar, Bishalgarh P. S. Case No.54/2010 under S.376/511 of the IPC. was registered and taken up for investigation. After completion of the investigation, the charge - sheet was filed against the appellant and having taken cognizance, the matter was committed to the court of Sessions and finally, the case was transferred to the court of the Addl. Sessions Judge, West Tripura, Court No.3, Agartala, who framed the charge under S.448 and S.376(1) read with S.511 of the IPC., to which the appellant pleaded innocence and claimed to face the trial.

4. To substantiate the charge, the prosecution has adduced as many as 8(eight) witnesses. For the appellant one witness was examined to rebut the evidence of the prosecution. After the appellant was examined under S.313 of the CrPC., the appellant has been convicted by the impugned judgment on observing as under:
In view of the above discussion in the previous paragraph of the judgment I am of the opinion that the prosecution is not successful to prove the charge under S.376(1) read with S.511 of Indian Penal Code . On the other 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 S.354 of Indian Penal Code can be said to be well proved against the accused. Offence under S.354 of Indian Penal Code is a minor offence than the offence under S.376(1) read with S.511 of Indian Penal Code . 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. From the evidence on record I am also of the opinion that the prosecution is successful also to prove the charge under S.448 of Indian Penal Code . Accordingly, the accused Buddhadeb Debnath is found guilty for commission of offence punishable under S.448 and S.354 of Indian Penal Code for which he is liable to be punished.

5. Mr. R. Dutta, learned counsel appearing for the appellant has submitted that there is no ingredient of offence punishable under S.354 of the IPC which essentially requires that the