Shri Ajoy Bahdur Soner vs The State Of Tripura
2021 Latest Caselaw 508 Tri

                                   Page 1



                      THE HIGH COURT OF TRIPURA
                            AGARTALA
                           CRL A 42 OF 2019

      Shri Ajoy Bahdur soner,
      Son of Shri Man Bahadur Soner of Dewanpasa,
      Ward No.4, PS-Dharmanagar,
      District-North Tripura.
                                                             .... Appellant
            - Vs -

      The State of Tripura,
                                                            ....Respondent

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For the appellant : Mr. A. Nandi, Advocate

For the respondent : Mr. Sumit Debnath, Additional Public Prosecutor.

Date of hearing and           : 16.04.2021
date of delivery of
Judgment & Order

Whether fit for reporting : NO

                       Judgment & Order (Oral)

This is an appeal against the judgment and order of conviction

and sentence dated 31.08.2019, passed by the learned Special Judge

(POCSO), North Tripura, Dharmanagar in Case No.Special (POCSO) 12 of

2018 whereby and whereunder the appellant has been convicted and

sentenced to suffer rigorous imprisonment for three years along with fine of Page 2

`10,000/- with default stipulation for commission of offence under Section

363 of the Indian Penal Code (for short, IPC) and also to suffer rigorous

imprisonment for three years along with fine of `10,000/- with default

stipulation for commission of offence under Section 8 of the Protection of

Children from Sexual Offences Act (POCSO) 2012. Both the sentences

were directed to run concurrently.

2. Briefly stated, one Shri Rajib Shyam, PW-1, the father of the

victim lodged a complaint to the Officer-in-Charge, Dharmanagar Women

Police Station, North Tripura stating inter alia that on 25-10-2017 last at

around 10:30 am, while his daughter was going to school, the accused Ajoy

Bahadur Sonar took her on a private vehicle from near Radharaman

Ashram (Padmapur). His minor daughter was a student of Class-VIII. He

mentioned the registration No. of the vehicle as TR02-F-0716. Panchayat

Pradhan of Dewanpasha and Radhapur along with other people rescued his

daughter after they got that news. This was a pre-planned kidnapping by

the accused Ajoy Bahadur Sonar who molested his daughter in the vehicle.

Thinking about the future of the girl, filing of the ejahar got delayed.

3. On the basis of said complaint, the O.C. of the Police Station

registered a case under Section 363 of IPC and Section 8 of the POCSO

Act against the accused. Investigation was carried out. During Page 3

investigation, the investigating officer examined available witnesses and

recorded their statements under Section 161 of CrPC. The statement of the

victim girl under Section 161 of CrPC has also been recorded. Thereafter,

being prima facie satisfied, the IO submitted charge-sheet against the

accused under Section 363 of IPC and Section 8 of the POCSO Act.

4. The learned trial court on receipt of the charge sheet, framed

charges against the accused under Section 363 of IPC and Section 8 of the

POCSO Act.

5. In course of trial, as many as 9 witnesses were examined and

cross-examined. The school certificate [Exbt.8] was seized for

determination of the age of the victim girl. Also the birth certificate [MO-1]

of the victim girl was seized.

6. At the closure of recording prosecution evidence, the learned

Special Judge examined the accused under Section 313 of CrPC, when he

was noticed about all the incriminating evidences as surfaced against him

to which he denied all the allegations levelled against him by the

prosecution witnesses and claimed that he has been falsely implicated in

this case.

7. Learned Special Judge after hearing the arguments advanced

by the learned counsels appearing for the parties recorded the findings of Page 4

guilt against the accused-appellant and accordingly convicted and

sentenced the accused-appellant as aforestated.

8. Being aggrieved by and dissatisfied with the said judgment

and order of conviction and sentence, the convict-appellant has preferred

the instant appeal challenging his conviction and sentence as stated here-in-

above.

9. I have heard Mr. A. Nandi, learned counsel appearing for the

appellant. Also heard Mr. S. Debnath, learned Addl. P.P. appearing for the

State-respondent.

10. Mr. Nandi, learned counsel for the appellant has tried to

persuade this court that there are material contradictions and omissions

emanated from the prosecution witnesses.

On the other hand, Mr. Debnath, learned Addl. P.P. for the

State-respondent submits that the prosecution has been able to prove the

charges framed against the accused-appellant beyond reasonable doubt.

11. I have considered the rival submissions of the learned counsels

appearing for the parties. Also perused the statements of the prosecution

witnesses and other material evidences.

Page 5

12. PW-1, the informant of the case being the father of the victim

girl deposed that at the time of incident his daughter was aged about 16

years and her date of birth was 18.09.2003 and during the year 2017 his

daughter used to study in Class-VIII at Padmapur H.S. School. On

25.10.2017 while his daughter was proceeding to her school, on way the

accused requested her to board his vehicle to drop her to the school. On

such assurance, the victim, his daughter boarded the vehicle but while they

reached the school, the accused did not stop the vehicle and it was stopped

at the road side of a village. He further deposed that at that time local

people had gathered there. Local people asked the accused to open the lock

of the door and then the accused opened the door and came out of the

vehicle. PW-1 further deposed that at that time suddenly, the accused hold

the hands of his daughter and jumped into a nearby pond. Deposing further,

PW-1 stated that the accused molested his daughter.

13. PW-2, the victim girl deposed that on 25.10.2017 she was

proceeding towards her school on foot. At that relevant time all on a

sudden Ajoy, the accused, came with Alto vehicle and asked her to get into

the vehicle assuring that he would drop her near to her school. She entered

into the vehicle but the accused did not stop the vehicle in front of the

school. The accused pulled her when she understood that the accused

would not stop the vehicle, then, she raised alarm but it was not audible to Page 6

others as the doors of the vehicle were closed. At that time, the accused

pulled her holding her hands inside the vehicle. At last, took her in a village

and stopped the vehicle adjacent to the road. In that meanwhile, local

people having found the situation rushed to the vehicle and then took out

the accused from the vehicle and the accused locked the door of the vehicle

from outside and at last he was compelled to open the lock of the vehicle

by the local people and then she came out and all on a sudden the accused

held her and jumped into a pond. However, the local people rescued her

from the pond and then brought her at home. After reaching at home, she

narrated the incident to her parents and consequently, the FIR was lodged.

She was examined medically. She deposed that at the time of incident her

age was 16 years and her date of birth was 18-09-2003. She identified the

accused at the dock.

14. PW-4, Smt. Bobita Shyam, being the mother of the victim

deposed in the same tune of the victim.

15. PW-5, Sri Nitya Gopal Das, one of the villagers deposed that

he along with others detained both the accused and the victim. Thereafter

he dropped the victim girl to her house.

16. PW-6, Sri Nirmal Chakraborty also deposed in the same tune

of PW-5.

Page 7

17. PW-7, Smt. Rinki Debbarma, registered the FIR being the

O.C. of the Dharmanagar Women PS.

18. PW-8, Smt. Usha Rani Debnath being the investigating officer

deposed that during investigation she examined available witnesses and

recorded their statements under Section 161 of CrPC; seized the birth

certificate of the victim as well her school certificate relating to the age of

the victim. She also seized the Alto vehicle bearing registration No.TR02-

F-0716 on the same date.

19. PW-9, Smt. Swarna Debbarma being the subsequent

investigating officer deposed that she arranged for ossification test of the

victim girl and thereafter on the basis of the statements of available

witnesses she submitted the charge-sheet.

20. At the outset, I make it clear that the age of the victim girl has

been proved beyond reasonable doubt. The parents of the victim as well as

the victim herself have categorically stated that at the time of incident she

was about 16 years and her date of birth was 18-09-2003. That means, at

the time of alleged offence the victim was minor. Now, the question to be

decided whether the prosecution has been able to prove the charge under

Section 363 of IPC framed against the accused.

21. Section 363 defines thus:-

Page 8

"363. Punishment for kidnapping.--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

22. In the instant case, from the deposition of the victim in respect

of the facts and circumstances of the case that on the fateful day at about

10:30 am while she was proceeding to school, she was requested by the

accused to board his vehicle. On such assurance, the victim boarded the

vehicle, but, though they reached to the school but the accused did not stop

the vehicle and went about 5 to 6 km away from the school where he

stopped the vehicle adjacent to a road in a village. At that time, villagers

rushed to the spot and they asked the accused to come out of the vehicle.

Accordingly, he came out. The accused locked the doors keeping the girl

inside the vehicle. However, when he was asked to open the doors, he

opened the same when the girl came out of the vehicle. Thereafter,

suddenly both the girl and the accused jumped into a nearby pond.

23. In my opinion, the circumstances that the victim girl entered

into the vehicle of the accused and did not stop the vehicle in front of the

school have been proved. However, the statements of the victim [PW-2]

that she raised alarm have not been proved beyond reasonable doubt.

Another interesting circumstance as garnered from the version of the

prosecutrix is that though the vehicle was stopped at the side of the road in

a village and the villagers rushed to the vehicle, but, there is no evidence Page 9

that at that time, the girl raised alarm and tried to draw the attention of the

villagers that she was kidnapped or abducted by the accused. Even after

getting her down from the vehicle, she did not say to anyone of the

villagers that she was taken to the place without her wish. But, since it is

established that she was minor at that time in my opinion, the charge

framed under Section 363 of IPC has been proved against the accused-

appellant.

24. Now, coming to the charge levelled against the accused under

Section 8 of POCSO Act. The said provision of law is reproduced

hereunder for necessary discussions:-

"8.Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."

25. The definition of sexual assault is found under Section 7 of the

POCSO act which reads as follows:-

"7. Sexual Assault.-- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

26. Keeping in mind the aforesaid definitions and having perused

the statements of the victim girl, it transpires that the accused had only held

the hands of the victim [PW-2]. The accused did not touch any other parts Page 10

of her person. It has not been proved that he intended to assault her

sexually. As such, I am of the opinion that the prosecution has failed to

establish the charge levelled against the accused under Section 8 of POCSO

Act and he is entitled to be acquitted on benefit of doubt. Consequently, the

conviction and sentence of the accused-appellant under Section 8 of the

POCSO Act stands set aside. Accordingly, the accused-appellant is

acquitted of the charge levelled against him under Section 8 of POCSO Act

on benefit of doubt.

27. However, I find from the facts and circumstances as discussed

here-in-above, that the prosecution has been able to prove the charge

against the accused under Section 363 of IPC. Accordingly, the accused is

liable to be convicted and sentenced under Section 363 of IPC. Section 363

of IPC prescribes punishment with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine. No

minimum is prescribed. Further, it is not clear that the intention of the

accused was that to kidnap the victim from the custody of her guardian.

The allegation of molestation as deposed by the father of the victim has not

been proved, rather, this statement of the father, PW-1 has not been

corroborated by the victim [PW-2]. It is revealed from the examination of

the accused under Section 313 CrPC that at the time of offence he was aged

about 25 years old. I have taken into consideration the age of the accused-

Page 11

appellant. Further, at this young age, that was his first offence, there was no

such antecedent. There is no evidence that he had committed any offence

prior to the present offence. Though the accused was released on bail, but

he did not commit any such offence or it has not come to the fore that he

disturbed the girl at any point of time even after his release on bail.

Perhaps, the act which was committed by the accused-appellant was the

outcome of visible youthful fantasies. In my opinion, this is a fit case under

the circumstances, to extend the benefit of Probation of Offenders Act in

favour of the accused-appellant.

28. Sub-section 10 of Section 360 of CrPC specifically

contemplates that the provisions of the Probation of Offenders Act,1958 or

the Children Act,1960 or any other law for the time being in force for the

treatment, training or rehabilitation of youthful offenders are not affected

by the Code. Therefore, the provisions of the Code were not excluded by

the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958

Act, are applicable in respect of the offenders before the court.

29. Accordingly, I grant the benefit of probation to the convict-

appellant for committing offence under Section 363 of IPC. Therefore, in

terms of Section 360 of CrPC, it is ordered that the convict-appellant be

released on probation of good behaviour and conduct for a period of one Page 12

year on furnishing a bond of `25,000/- (Rupees twenty five thousand) with

one surety of like amount before the learned Special Judge (POCSO),

North Tripura District, Dharmanagar, within a period of one month from

the date of receipt of the certified/authenticated copy of the judgment and

order by the appellant on condition that-- (i) the appellant shall not misuse

the benefit of his release on probation of good conduct; (2) shall not disturb

the victim girl or commit any offence punishable under any Statute or Act

and (3) shall not leave the jurisdiction of the court without prior permission

of the learned Special Judge (POCSO), North Tripura Judicial District,

Dharmanagar within the said probation period.

30. The appeal is, therefore, partly allowed and stands disposed in

the above terms.

Send back the LCRs.

JUDGE