It is of extreme significance to note that while ruling on a very significant legal point, the Tripura High Court in a most learned, laudable, landmark, logical and latest judgment titled Sri Bibhishan Ghosh vs The State of Tripura in Crl.A.No.01 of 2024 that was heard on 10.01.2025 and then finally pronounced on 15.01.2025 has set aside the conviction and sentence that was imposed by a Trial Court under Section 354 of IPC against an accused on the ground that the ingredients of the offence of using ‘criminal force or assault’ upon the victim could not be established by the prosecution. It must be noted that the Court pointed out that the accused only touched her body but she specifically did not 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 appeal filed by the appellant was thus allowed. We thus see that the judgment and order of conviction of 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 was thus set aside by the Tripura High Court. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Biswajit Palit sets the ball in motion by first and foremost putting forth in para 1 that:
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.

To put things in perspective, the Bench envisages in para 5 while elaborating on the facts of the case stating briefly that:
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 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, O/C Baikhora P.S. registered Baikhora P.S. case No.86 of 2020 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 I.O. on completion of investigation laid charge-sheet against the appellant to the Jurisdictional Court and thereafter, the same was committed to the Court of Learned Sessions Judge, South Tripura, Belonia. Learned Sessions Judge, being the Trial Court by order dated 29.04.2022 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, Learned Trial Court convicted the appellant as already stated above.

Most significantly, the Bench encapsulates in para 16 what constitutes the cornerstone of this notable judgment postulating succinctly that:
From the evidence on record, it appears that to the alleged place of occurrence excepting the victim, no other persons were present. All the witnesses who are produced by the prosecution appeared to the place of occurrence after the alleged occurrence. Now we are to see how far the evidence of the victim is trustworthy. 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. Now, if we meticulously go through the evidence of the victim, it appears that she only stated that the accused only touched her body. But she specifically did not 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.

Equally significant is what is then pointed out in para 17 observing that:
Now in course of hearing of argument, Learned Counsel for the appellant drawn the attention of the Court that to substantiate the charge under Section 354 of IPC, there should be ingredients of ‘criminal force or assault’. But referring the definition of ‘criminal force or assault’, Learned Counsel for the appellant drawn the attention of the Court that from the evidence on record, it is crystal clear that the prosecution in this case could not place any material before the Court to substantiate that the accused used criminal force or caused assault upon the victim in committing the offence.

Learned Counsel also submitted that as the victim went to the medicine shop for administration of injection, so, it is quite natural that at the time of pushing of injection, there may be some bodily touch by the alleged appellant upon the victim because in absence of any bodily touch how the accused would administer injection upon the victim, although prosecution in this regard could not produce any cogent evidence on record, nor the I.O. during investigation tried to ascertain as to whether what sort of injections were pushed by the alleged appellant upon the victim. Nor any prescription in this regard was collected or seized by I.O. during investigation. So, this part of evidence of the prosecution appears to be doubtful.

Furthermore, the FIR in this case could not be proved by the prosecution in accordance with law nor the prosecution could produce the Magistrate who recorded the statement of the victim. Prosecution only identified the signature of the victim on the judicial statement recorded by Magistrate. Even the contents of the FIR and also the contents of the statement of the victim could not be proved by the prosecution in this case.

While citing the relevant case law, the Bench mentions in para 18 that:
Learned Counsel for the appellant, in course of hearing, referred the citation of Hon’ble the Supreme Court Naresh Aneja alias Naresh Kumar Aneja vs. State of Uttar Pradesh and Anr. dated 02.01.2025 reported in (2025) SCC OnLine SC 3 in para No.12 observed as under:

12. A bear perusal of Section 354, IPC reveals that for it to apply, the offence must be committed against a woman; criminal force must be applied against her; and such application of force must be with the intent to outrage her modesty. [See : Raju Pandurang Mahale v. State of Maharashtra: (2004) 4 SCC 371

12.1. Criminal force is defined in Section 350 IPC11, however, what exactly does modesty means, which is an essential aspect for this Section to apply, has not been defined so as to constitute an offence u/s 354 IPC. Any discussion on this Section is incomplete without reference to Rupan Deol Bajaj v. K.P.S Gill: (1995) 6 SCC 194 wherein the Learned Judges observed:

14. Since the word ‘modesty’ has not been defined in the Penal Code, 1860 we may profitably look into its dictionary meaning.

12.3. Turning to the facts of the instant case, keeping in view the contents of the FIR, the statement in the final report of the investigating officer, and the statement u/s 164 CrPC of the complainant, we are of the view that even prima facie the ingredients as referred to supra, are not met. The record is silent with respect to the use of any force, apart from bald assertions of mental and physical discomfort caused to the complainant by the appellant.

12.4. It is well settled that for mens rea to be established, something better than vague statements must be produced before the court. As evidenced by the annexures referred to above, i.e. the FIR, the preliminary investigation report as also the concluding portion of the chargesheet, no direct allegation nor any evidence in support thereof can be found attributing intent to the appellant. It cannot be said, then, that a case u/s 354 IPC is made out against the appellant.

Referring the said principle of law laid down by the Hon’ble Apex Court, Learned Counsel drawn the attention of this Court that here in this case there is no evidence on record that the alleged appellant used any criminal force or caused assault to the victim on the alleged day to substantiate the charge under Section 354 of IPC.

While referring to another case law, the Bench pointed out in para 19 that, Learned Counsel further referred another citation of the Hon’ble Apex Court in Somasundaram Alias Somu vs. State of Rep. by the Deputy Commissioner of Police dated 03.06.2020 reported in (2020) 7 Supreme Court Cases 722. Referring the same Learned Counsel submitted that since the Magistrate who recorded the statement of the victim was not produced, so, only by identifying the signature of the victim on the body of the statement recorded, there is no scope to convict the accused in a case of this nature because according to Learned Counsel, a statement recorded under Section 164 of Cr.P.C. can be relied upon only for the purpose of corroborating the statement made by the witness in the committal Court or for the purpose of contradiction of the witness. But here in the case at hand, 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.

Finally, the Bench then concludes by holding in para 20 that:
In the result, the appeal filed by the appellant is hereby allowed. The judgment and order of conviction of 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 is hereby set aside and the appellant-accused is hereby acquitted in benefit of doubt from the charge of this case and his surety also stands discharged from the liability of the bond. The case is disposed of on contest. Send down the LCR along with a copy of the judgment/order. Pending application(s), if any, also stands disposed of.

In conclusion, we thus see that the Tripura High Court has made it indubitably clear that it has very rightly set aside the conviction in this leading case citing lack of evidence. It was also thus made clear by the Court that investigating officer (IO) didn’t collect injury report. So it was quite palpable that the benefit of doubt was extended to the appellant-accused who was thus acquitted in this leading case! Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh