2023 Supreme(Online)(TRI) 943

HIGH COURT OF TRIPURA AGARTALA Crl.Rev.P. No.16/2022 Shri Nandalal Baidya, son of Late Bhuban Chandra Baidya, resident of Debendrachandra Nagar, P.S.-West Agartala, District-West Tripura.

………Petitioner(s).

V E R S U S The State of Tripura ………Respondent(s).

For Petitioner(s) : Mr. Sankar Lodh, Advocate, Mr. Kishalay Roy, Advocate, Ms. Ayesha Saha, Advocate.

For Respondent(s) : Mr. Ratan Datta, P.P., Mr. Samrat Ghosh, Addl. P.P.

HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH Date of hearing and judg ment: 28th April, 2023.

Whether fit for reporting : YES.

JUDGMENT & ORDER(ORAL)

Heard Mr. Sankar Lodh, learned counsel for the petitioner and Mr. Ratan Datta, learned Public Prosecutor assisted by Mr. Samrat Ghosh, learned Additional Public Prosecutor appearing for the respondent-State.

2. Aggrieved by the judgment dated 15.03.2022 passed by the learned Sessions Judge, Khowai, Tripura in case No. Criminal Appeal 05 of 2021 whereby the learned Appellate Court has confirmed the conviction and sentence imposed upon the petitioner under Sections 354 and 354A of the Indian Penal Code (IPC, for short) by the learned Judicial Magistrate First Class, Khowai, Tripura vide judgment of conviction and sentence dated 23.09.2021 in case No.PRC(WP) 76 of 2019, the petitioner is in revision under Sections 397 read with Section 401 of the Code of Criminal Procedure (Cr.P.C., for short).

3. The prosecution was launched on the complaint of the Inspector Smt. Tripti Debnath, ROI(West) under the office of Superintendent of Police, West Tripura, Agartala dated 04.07.2019, inter alia, on the basis of the written complaint of the prosecutrix/victim (PW-1) made before the Superintendent of Police (GRP), Tripura, Agartala on

26.04.2019 making the following allegations:

That, the victim, a Group-D employee of GRP Unit, then posted at Teliamura GRPS alleged that Sub-Inspector (UB) Nandalal Baidya, the petitioner herein, had about 6/7 months ago after few days of his joining found the complainant alone in P.S. office and used to frequently indulge in irrelevant talks with her and offered love before her. The victim realizing his bad intention did not respond to his irrelevant talk and silently performed her official duty. On 08.02.2019 the said victim went to the bathroom of the Police Station when the accused Nandalal Baidya approached before the door of the bathroom and tried to whisper with her. She also alleged that the accused used to take alcoholic drink in his office room and ordered her for bringing other necessary things for taking his drink. On 19.02.2019 as per his order when the victim went before him for giving water on his table, the said accused caught her right hand and asked her to remain standing before him. He also stated that he wished to look over her.

4. On the complaint of the victim, the Superintendent of Police, GRP Unit, Tripura ordered an inquiry into the matter by the Internal Complaints Committee and submit a report. The report was submitted by the Deputy Superintendent of Police (GRP) Headquarters, the Chairman of the Internal Complaints Committee, which is enclosed to the written complaint dated 04.07.2019. Based on the allegations, the informant requested to register an F.I.R. against Nandalal Baidya. Upon completion of investigation, charge-sheet was filed and after taking of cognizance under Sections 354 and 354A of the IPC, the learned trial Court of Judicial Magistrate Ist Class, Khowai, Tripura framed charges under Sections 354 and 354A of the IPC. After denial of his guilt, the trial proceeded.

5. Prosecution examined 15(fifteen) witnesses, inter alia, as under:

PW-1 : Name withheld (Victim);

PW-2 : Shri Bikash Debbarma;

PW-3 : Shri Rabindra Debbarma;

PW-4 : Shri Nabadurga Sarkar;

PW-5 : Shri Naresh Ch. Paul;

PW-6 : Smti. Anita Das;

PW-7 : Smti. Namita Deb;

PW-8 : Smt. Tripti Majumder;

PW-9 : Shri Swapan Debbarma (husband of the victim);

PW-10: Shri Sunirmal Baishya;

PW-11: Smti. Tripti Debnath (informant);

PW-12: Shri Gauranga Debbarma;

PW-13: Md. Babul Hussain;

PW-14: Shri Himangshu Roy; and PW-15: S.I. Subhrangshu Bhattacharjee (I.O.).

No defence witness was examined. The prosecution had also exhibited the hand-sketch map of the P.O. and its index as Exhibit-6 and 7 respectively. The deposition of the victim recorded under Section 164(5) of the Cr.P.C. was also exhibited.

6. After conclusion of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Cr.P.C. in which he stated that he had been falsely implicated. Apart from that, the accused did not offer any explanation in his defence to the materials deposed against him by the prosecution witnesses.

7. After conclusion of the trial and hearing the arguments of the prosecution and the defence, learned trial Court held the accused guilty of the charges under Sections 354 and 354A of the IPC and sentenced him to undergo Simple Imprisonment for one year with a fine of Rs.500/- under Section 354 of the IPC and R.I. for 6(six) months for the offence punishable under Section 354A of the IPC. Both the sentences were ordered to run simultaneously vide impugned judgment and order of sentence dated 23.09.2021. The petitioner being aggrieved by the judgment of conviction and sentence approached the appellate Court of learned Sessions Judge, Khowai, Tripura in Criminal Appeal No.05 of 2021. However, the appellate Court after perusal of the impugned judgment and the materials adduced during the trial by the prosecution and the statement of 313 Cr.P.C. by the accused affirmed the conviction and order of sentence, inter alia, holding as under:

"6) On the other hand Ld PP submitted that the evidence led by prosecution is sufficient to prove the charges framed against the accused person and Ld Trial Court rightly convicted the appellant and as such, there is nothing to interfere with the order of conviction and sentence passed by the Ld Trial Court.

7) In addition to the grounds of memo of appeal, Ld Advocate of the appellant submitted that :-

(i) The person who called the appellant-accused and the relevant point of time when the victim lady went to the wash-room was not cited as witness in the instant case. Hence, adverse inference should be taken under Section 114 (g) of Indian Evidence Act. This is sufficient to disbelieve the prosecution story.

(ii) There is delay of 56 days in lodging the ejahar and there is no suitable explanation for such in ordinate delay which is fatal to disbelieve the prosecution story.

(iii) The ingredients of Section 354 and 354-A of IPC are not at all proved.

8) On perusal of the evidence on record and after hearing both sides I cannot be of same opinion on the following grounds.

a) So far section 114 (g) of Evidence Act is concerned the settled principle of law is that if a party suppresses or withholds some evidence in his possession the court may presume that the evidence if produced would be un-favourable to that party. Other important aspects of section 114 (g) of Evidence Acts are that the witness should be a material and important witness, withholding or suppression of witness is deliberate. Depending upon the whole set of facts and adverse inference may rise against a party where he does not produce available evidence. Certainly things will be different for non production of unidentified witnesses. Adverse inference can only be drawn only if there is withholding evidence not merely on account of failure to obtain evidence.

In the instant case PW 01 (Rachana Debbarma), the victim during cross-examination admitted that there is only one common bathroom at their office which is also used by the O/C, the appellant. So, it may be difficult for the IO to identify that particular witness who called the O/C at the relevant point of time.

During argument Ld PP submitted that here the appellant is the best person to identify that person as the circumstance says that it is within his exclusive knowledge.

Ld PP also referred section 106 of Evidence Act.

From the evidence on record, it appears that the person who called the O/C, when the victim lady was in washroom could be a witness but not a material and important witness as here the most vital witness is PW 01, the victim lady who was duly examined and cross-examined.

So, considering, the discussion made above under point No. (a), I am of the opinion that this case is not fit for drawing adverse presumption under section 114 (g) of Evidence Act.

b) So far the point of delay in lodging the FIR as raised by the Ld Advocate of the appellant, is concerned, the Judgment passed in state of Punjub Vrs Gurmit Singh (AIR 1996 SC 1993) by Hon’ble Supreme Court is very much relevant. The Hon’ble Supreme Court observed :-

“In sexual offences delay in lodging FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to police and complain about the incident which concerns reputation of the prosecutrix and the honour of the family. It is only after giving it a cool thought that a complaint of sexual offence generally lodged.”

So, much importance should not be given always in delay in lodging FIR particular in sexual offence cases. In the instant case the victim lady is a Group-D employee and the accused is the O/C of the PS. So, certainly it is very difficult for a Group-D employee to take instant action against her officer.

Here the delay in lodging the ejahar is sufficiently explained by the victim lady and there is no ground to disbelieve her statement. Moreover, in one line the delay as pointed out by Ld Advocate of the appellant is not at all fatal here.

Next comes the important part of the case i.e. whether the alleged activities of the appellant attract the ingredients of section 354 and section 354-A of IPC.

In case of Section 354 of IPC guilty intention of the accused plays a vital role in determining the offence. State of Punjub Vrs Major Singh (AIR 1967 SC 63).

From the evidence of PW 01 (victim), it appears that she specifically stated that on 08.02.2019 when she went to bathroom of the GRS police station, the accused approached before the bathroom for illicit love by whispering. Due to this she would not come out from the bathroom. Again she specifically stated that on 19.02.2019 at about 01.41 p.m. the accused called her to his room. She thought that he called her for water. The accused caught her hand, dragged her inside the room and touched her breasts and outraged her modesty. Such activities clearly indicates his guilty intention to outrage her modesty. Simply physical conduct and advances including specific sexual gestures, a demand or request for any kind of sexual favour are sufficient to attract section 354-A of IPC.

During argument Ld Advocate of the appellant submitted that out of fatherly feelings the appellant caught the hand of the victim lady but the fact is that the lady is the right person to comment upon the nature of the touch of the appellant whether it was friendly, brotherly or fatherly. From the evidence it becomes clear that the victim lady clearly felt the bad intention of the accused her modesty was outraged by the appellant. She categorically stated that she informed the matter to Rabindra Debbarma (PW 03), Bikash Debbarma (PW 02), Naresh Paul (PW 05), Babul Hossain (PW 13). All of them supported the version of the victim lady. There is no ground to disbelieve the statement of the victim lady. There is no discrepancy among the statement of the witnesses. The witnesses corroborated the version of the victim lady.

During argument Ld Counsel for the appellant questioned the concluding part of the Judgment passed by the Ld Magistrate.

In my view, the way of writing judgment may be different as per the Ld Advocate of the appellant but the conclusion arrived at on the basis of evidence of the prosecution, by the Ld Magistrate is correct and there is no space to interfere with the Judgment passed by the Ld.

Magistrate.