Sri Sujit Nath @ Sujit Debnath @ ... vs The State Of Tripura
2021 Latest Caselaw 1214 Tri

                      THE HIGH COURT OF TRIPURA
                            AGARTALA

                           CRL A 33 OF 2019

Sri Sujit Nath @ Sujit Debnath @ Pintu,
S/o Sri Harkishore Nath @ Horkishore Debnath of West Radhapur,
P.S. Dharmanagar, District-North Tripura.
                                                        .... Appellant
             - Vs -

The State of Tripura,

                                                            ....Respondent

                          BEFORE
             HON'BLE MR. JUSTICE ARINDAM LODH

For the appellant             : Ms. R. Purkayastha,Advocate.

For the State-respondent      : Mr. S. Ghosh,
                                Additional Public Prosecutor.

Date of hearing and           : 07.12.2021
date of delivery of
Judgment & Order

Whether fit for reporting : No

                        Judgment & Order (Oral)
            This is an appeal directed against the judgment and order of

conviction and sentence dated 01.08.2019, passed by learned Special Judge

(POCSO), North Tripura, Dharmanagar, in connection with case No.

Special (POCSO) 07 of 2018 whereby and whereunder the convict-

appellant has been convicted and sentenced to suffer R.I. for one year along

with a fine of Rs.5000/- with default stipulation, for commission of offence
                                       Page 2



punishable under Section 354 A(1)(i) of IPC and further to suffer R.I. for

3(three) years along with a fine of Rs.5000/- with default stipulation, for

commission of offence punishable under Section 8 of the Protection of

Children from Sexual Offences (POCSO) Act, 2012.


2.           Facts

, as projected by learned Special Judge are reproduced

hereunder:

"The factual backdrop of the case is that one Smt. Gouri Nath, wife of Samiran Nath of East Huplong, Ward No.04, PS- Dharmanagar, North Tripura District lodged an Ejahar with the Officer-in-Charge of Dharmanagar Women Police Station to the effect that on 18-04-2018 at about 0200 hours at night her victim daughter (real name withheld) along with her father and two younger brothers went to see the "Kali Nritya" of Charak Puja at Radhapur Bhumihin Colony and after seeing the "Kali Nritya" at about 0330 hours the victim along with her father returned home and thereafter her father went to sleep and the victim went out to attend natures call and at that time Pintu Nath came there and with sexual intent touched her private parts and there was also another boy and when the two younger brothers of the victim came and finding the victim missing in the house started calling her by her name and hearing their call the sister in law of the complainant also came and then the accused persons fled away. It is also stated that the complainant was not at home on the date of the incident and after coming home hearing the fact of the incident from her victim daughter she lodged the complaint."

3. Based on the aforesaid facts, the Officer-in-Charge of

Dharmanagar Police Station had registered the FIR No.2018 WDN 009

under Sections 354/34 of IPC read with Section 8 of the POCSO Act, 2012

against the accused-appellant and took up the investigation.

Page 3

4. During investigation, the investigating officer recorded the

statements of the victim girl; arranged for her medical examination; seized

her birth certificate (Exbt.3 series) as well as the school certificate (Exbt.7);

arranged for T.I. parade to confirm the identity of the accused and also

arranged for recording statements of the victim girl under Section 164(5) of

CrPC. Having satisfied that a prima facie case is established, the

investigating officer had submitted charge-sheet.

5. At the commencement of trial, charges were framed against

the accused-appellant under Section 8 of the POCSO Act and Section

354/34 of IPC. It was read over to the accused to which he pleaded not

guilty.

6. During trial, the prosecution had examined as many as 7

witnesses.

7. After conclusion of trial, the accused-appellant was examined

under Section 313 CrPC wherein he stated that he had been falsely

implicated with the case and claimed to be innocent.

8. Learned Special Judge had held that the charges framed

against the accused-appellant had been proved beyond reasonable doubt

and accordingly, learned Special Judge had convicted and sentenced the

accused as aforestated.

Page 4

9. Being aggrieved by and dissatisfied with the said judgment

and order of conviction and sentence, the appellant has preferred the instant

appeal before this court.

10. I have heard Ms. R. Purkayastha, learned counsel appearing on

behalf of the appellant. Also heard Mr. S. Ghosh learned Addl. P.P.

appearing on behalf of the State-respondent.

11. Appearing on behalf of the accused-appellant, Ms. R.

Purkayastha, learned counsel submitted that the prosecution has failed to

establish the case. Learned counsel for the appellant further submitted that

prosecution has failed to prove the age of the victim girl. Furthermore, the

victim girl was consenting party to the incident. Ms. Purkayastha, learned

counsel has tried to persuade this court by inviting attention of this court

that the victim has improved her story what she stated before learned

Magistrate at the time of recording of her statements under Section 164(5)

of CrPC. Learned counsel further submits that the victim has contradicted

her statements recorded under Section 164(5) of CrPC at the time of

deposition before the court on oath. Learned counsel Ms. Purkayastha has

contended that vital witnesses, namely, Bapan Nath and Smt. Chanchala

Nath were withheld by the prosecution without any explanation.

Page 5

12. On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing

for the State-respondent has strongly relied upon the findings returned by

learned Special Judge in convicting the accused-appellant. Mr. Ghosh,

learned Addl. P.P. submitted that there is no contradiction between the

statements of the victim girl what she stated in the deposition and before

the Magistrate under Section 164(5) of CrPC.

13. I have considered the rival submissions advanced by the

learned counsels appearing for the parties. In view of the aforesaid

submissions of the learned counsels, I have perused the evidences and

materials on record as adduced by the prosecution.

14. PW-1, the mother of the victim deposed that on 18.04.2018

she was not at home as she went to her parental house. On the same day at

night, her husband along with her victim daughter and other sons went to

attend a religious ceremony. At about 03:30 A.M. they returned to house.

The father of the victim went to sleep and her victim daughter went out to

attend nature's call. At that time, the accused had arrived there and with

sexual intent touched her private parts. On her (PW-1) return to house, the

victim narrated the incident to her. Thereafter, she had taken her daughter

to the police station to lodge a complaint against the accused-appellant. She

produced the birth certificate (Exbt.3 series) of the victim girl which was Page 6

seized by the investigating officer. She identified the birth certificate.

Moreso, PW-1 during her deposition has categorically stated that at the

time of incident her victim daughter was aged about 15 years.

The defence could not elicit any material contradiction from

her cross-examination.

15. PW-2, the victim girl deposed that while she went for nature's

call, the accused along with another boy had arrived there, the accused

pressed her mouth and touched her breasts. Her two brothers came out of

the room to look for her. They identified the accused. The victim also could

identify the accused as he was a boy of the same village. Ultimately, the

accused had fled away from the spot having noticed the arrival of her

brothers. PW-2 further deposed that she made her statements before the

Magistrate narrating the incident. She further deposed that she was taken to

the Jail to attend T.I. parade. In the T.I. parade the victim (PW-2) had

identified the accused-appellant who committed the offence.

During cross-examination, the defence tried to elicit the fact

that the victim had arrived there out of her own will and volition, which she

denied.

16. PW-3, Swapan Nath is a teacher of Huplong Village High

School. He deposed that he had written the contents of the school Page 7

certificate issued and signed by the Headmaster of the concerned school.

On identification, the school certificate has been marked as Exbt.7 and his

signature on the seizure list has been marked as Exbt.6.

During cross-examination, PW-3 stated that there was no

endorsement in the certificate to the effect that the said certificate was

written by him. He further stated that there was no Admission Book No.

and Registration No. in the certificate.

17. PW-4 is another teacher who put his signature in the seizure

list of the school certificate.

18. PW-5, Pritam Nath is the brother of the victim. He deposed

that his victim sister being not found in the room, he along with his another

brother had searched for her with a torch light and he found Pritam

standing over there. At that time, one Bapan of the same village had

arrived. His uncle also had arrived at the scene of occurrence. Pritam was

asked what he was doing at that late night but instead of replying, Pritam

started calling upon Pintu saying 'bachao' 'bachao'. Pintu came out from

the jungle and both of them ran away.

19. PW-6 is the investigating officer. PW-7 is the Magistrate who

conducted the T.I. parade.

Page 8

20. While appreciating the aforesaid evidence and materials on

record, I find no contradiction between the statements which the victim

deposed before the court and the statements she made before the

Magistrate. The vital part of her statements is that at the time of incident

she went for her nature's call. The accused had arrived at the spot, pressed

her mouth and touched her private parts. On arrival of her brothers and

others the accused-appellant had fled away.

21. Considering the submissions made by Ms. Purkayastha,

learned counsel for the appellant that there are some contradictions in

between the statements of the victim girl what she had deposed before the

court and the statements recorded under Section 164(5) of CrPC, I have

again perused her statements recorded under Section 164(5) of CrPC. Here

also I find that the victim girl has stated that due to her nature's call when

she went outside of her room, the accused came and pressed her mouth and

touched her private parts. Therefore, according to me, the victim is found to

be very consistent to her statements that she went out for nature's call; the

accused had appeared, pressed her mouth and touched her private parts. As

such, I repel the submission of learned counsel appearing on behalf of the

appellant that there are contradictions between the statements of the victim

girl during her examination under Section 164(5) of CrPC and the

statements she made before the court.

Page 9

22. Next, I find that the age of the girl has been proved beyond

reasonable doubt. The birth certificate was issued by the Registrar, Births

and Deaths. The mother, PW-1 has confirmed the age of the victim girl. It

is settled position of law that the statements of parents are the best evidence

regarding the age of the children. In the instant case, the statements of PW-

1 regarding age of her victim daughter remains unimpeached and gets

substantial support from the birth certificate issued by the Registrar, Births

and Deaths which is further corroborated by the school certificate (Exbt.7).

23. On overall assessment of the aforesaid materials and evidence

on record, I find no reason to interfere with the judgment and order of

conviction and sentence as returned by learned Special Judge (POCSO),

North Tripura, Dharmanagar.

24. Accordingly, the judgment and order of conviction and

sentence dated 01.08.2019, passed in Special (POCSO) 07/2018 stands

affirmed and upheld. The appeal stands dismissed. It is informed that

accused-appellant is on bail. So, his bail bond is cancelled. Surety of the

bail bond is discharged from his liability.

25. The accused-appellant, Sri Sujit Nath alias Sujit Debnath alias

Pintu is directed to surrender before the court of learned Special Judge

(POCSO), North Tripura District, Dharmanagar within a period of two Page 10

weeks from today, failing which, learned Special Judge shall ensure the

arrest of the accused-appellant to serve the remaining period of sentence.

Needless to say, the period of imprisonment he suffered after his arrest or

during trial shall be set off.

Send back the LCRs forthwith.

JUDGE