Sri Gopal Datta vs The State Of Tripura
2021 Latest Caselaw 1238 Tri

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                        CRL. A. 45 of 2019
 Sri Gopal Datta,
 son of Sri Atul Datta, resident of UBC Nagar,
 P.S. Belonia, District- South Tripura
                                             ----Appellant(s)
             Versus
 The State of Tripura                                  ----Respondent(s)

 For Appellant(s)                   :     Mr. PK Biswas, Sr. Advocate
                                          Mr. P. Majumder, Advocate
                                          Ms. V. Poddar, Advocate
 For Respondent(s)                  :     Mr. S. Ghosh, Additional PP
 Date of hearing & delivery of
 Judgment & Order                   :     13.12.2021
 Whether fit for reporting          :     No

                           BEFORE
               HON'BLE MR. JUSTICE ARINDAM LODH
                   Judgment & Order (ORAL)
13.12.2021

This appeal has been preferred by the convict-appellant against the judgment and order of conviction and sentence dated 20.09.2019 passed by the learned Special Judge, South Tripura, Belonia in case No. Special 8 (POCSO) of 2019 whereby and whereunder, the appellant was convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- with default stipulation for committing offence punishable under Section 8 of the POCSO Act, and further sentenced him to pay a fine of Rs. 500/- for the offence punishable under Section 341 IPC with default stipulation.

2. The prosecution story was set on motion on the basis of a complaint lodged by the father of the victim to the effect that on 08.03.2019 at about 11- 11.30 am, the minor daughter of the informant was returning to her house from a nearby land situated infront of the road of the pump house after tethering their cattle. At that time, accused Gopal Datta restrained her and Page 2

took her into the pump house and put off her wearing apparels. The accused person thereafter sucked the breast of the victim and entered his finger into her vagina. The victim did not raise alarm as the accused had threatened her with dire consequences. At that time when the accused person saw the wife of the informant coming towards the pump house, the accused asked the victim to leave. The victim thereafter informed the incident to her mother. On being returned to the house both the wife and victim daughter of the informant narrated the incident to him and thereafter, the informant lodged this case.

3. On receipt of the said complaint, the Officer-in-Charge of Belonia police station registered an FIR being Belonia Women PS case No. 2019 WMN 015 under Sections 376C(b)(2)(i) & 506 IPC and section 6 of the POCSO Act and started investigation and on completion of the investigation and after being prima facie satisfied I.O. submitted charge-sheet against the accused person, the appellant herein.

4. Having received the charge-sheet, the learned Special Judge took cognizance of offence punishable under Section 376AB/363/506 IPC and under Section 6 of the POCSO Act against the accused person. At the commencement of trial charges were framed against the accused person under Section 354B/376(AB)/341/506 IPC and sections 6 and 8 of the POCSO Act, 2012. The contents of the charges were readover and explained to the accused to which he pleaded not guilty and desired to stand on trial.

5. To substantiate the charges framed against the accused person, the prosecution had examined as many as 15 witnesses and introduced some documents. After conclusion of trial, the accused person was examined under Section 313 (1)(b) of Cr.P.C. wherein he denied all the allegations leveled against him by the prosecution. After hearing arguments advanced by the learned counsel appearing for the parties, the learned Special Judge had held the accused guilty of committing offence punishable under Section 8 of the Page 3

POCSO Act and section 341 IPC and convicted and sentenced the accused, as aforestated. Being aggrieved and dis-satisfied with the said judgment and order of conviction and sentence, the accused has preferred the instant appeal before this court.

6. Heard Mr. PK Biswas, learned senior counsel assisted by Mr. P. Majumder and Ms. V. Poddar, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the respondent.

7. Mr. Biswas, learned senior counsel has submitted that the prosecution has miserably failed to establish the charges leveled against the accused person. According to learned senior counsel, prosecution witnesses in course of trial had contradicted each other and also there was delay in lodging the FIR and the cause of delay was not explained by the prosecution. Mr. Biswas, learned senior counsel has tried to persuade this court by way of referring the deposition of PW-2, mother of the victim girl who deposed in her chief- examination that the incident of committing sexual assault towards her victim daughter (PW-3) was reported to her when she was in her house, but, the victim (PW-3) deposed that the accused had freed her when he had seen PW-2 (mother of the victim) coming out of her house. According to learned senior counsel, it was a major discrepancy in the prosecution story for which the accused is entitled to get benefit of doubt. Mr. Biswas, has also questioned as to why the informant (PW-1) who is the father of victim did not visit the police station first and why he went to the scribe and further when PW-1 and the victim (PW-3) were escorted by the police on their way to Belonia hospital, why the police did not register the case. In view of the above evidences, as surfaced in the prosecution case, learned senior counsel has argued that the very integrity of the statement of the victim girl is doubtful consequent to which the accused-appellant should necessarily be acquitted.

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8. On the other hand, Mr. Ghosh, learned Additional PP has submitted that it is very natural that when a girl is molested or raped, the parents always try to go to the neighbouring people of the same locality and it is also very natural to go first to the hospital for medical examination for the treatment of the victim girl, and registration of FIR shall follow. Mr. Ghosh, learned Additional PP has submitted that the statement of the victim girl from the very starting point of the prosecution case till her statement before the court remained unimpeached and she was found to be very consistent in her statements about the nature of commission of offence by the accused- appellant. Learned Additional PP has further argued that the part of the statement of the victim girl as well as the evidences of PW-1 and PW-2, which are corroborated by PW-6 (Smt. Chandrabati Dhar), appear to be enough to convict the accused-appellant.

9. In view of the aforesaid submissions, I have gone through the evidences on record and also perused the judgment passed by the learned Special Judge.

9.1. PW-1, Sri Sadhan Sarkar, is the father of the victim (PW-3). PW-2, Smt. Sanju Das (Sarkar) is the step-mother of the victim. PW-6, Smt. Chandrabati Dhar, is the person who is a resident of the same locality. After reporting of the incident, PW-2 went to the house of PW-6 and reported the incident to her. PW-1 has categorically stated in his deposition that on 08.03.2019 when he was attending a political meeting at Belonia, he received information over mobile by his wife (PW-2), that his daughter (PW-3) was sexually assaulted by the accused. He immediately returned back to his house by a bike which was arranged by one Ganesh Dhar (PW-

7). On his arrival to the house, the incident of sexual assault upon the victim (PW-3) was narrated to him by both PW-2 and PW-3. Thereafter, he reported the incident to some of the neighbours. In the evening, he went to a scribe to write a complaint. Thereafter, he reported the matter to the Page 5

police station. Then police escorted him alongwith his daughter to the hospital, but, at that point of time having found no doctor at Belonia hospital, the police had taken them to Santirbazaar hospital, where the victim girl was medically examined. PW-1 has specifically stated that at the time of offence his victim daughter was aged about 11 years 6 months 8 days and she was studying in class VI. He produced the birth certificate. PW-1 further deposed that after tethering his cattle (cows) while PW-3 was returning to his house then the accused forcibly had taken her to the pump house room, and thereafter, removed her wearing apparels, pressed her breast and also inserted his fingers into her vagina. His victim daughter was also complaining pain in her vagina. Thereafter, he narrated the incident to his neighbours, namely, Ganesh Dhar (PW-7), wife of Ganesh Dhar (PW-

6), Bhusan Debnath (PW-4) and other persons. His attention being drawn in cross-examination, PW-1 had confirmed the specific name of Ganesh Dhar and Bhusan Debnath existed in his statement recorded under Section 161 Cr.P.C.

9.2. PW-2, Smt. Sanju Das (Sarkar) who happened to be the step-mother of the victim girl. She deposed that when the incident had taken place, she was at their house. She further deposed that her daughter (PW-3) went out at about 11-11.30 am towards the pump house for tethering their cattle. After about two hours after returning home, her victim daughter reported her that while she was returning home from the pump house, accused Gopal Datta whom she used to address as 'jethu' called her and taking her inside the pump house he first removed her skirt and sucked her breast and inserted his two fingers into her vagina. At that instance, she went to the house of Ganesh Dhar and met with his wife and informed her the said fact. Then, as per her advise she called her husband through telephone. At about 2.30 p.m. her husband (PW-1) returned when both of them narrated the incident to him. At that time, some persons of their locality came to their Page 6

house. In cross-examination, her attention being drawn to her statement that some persons, namely, Ganesh Dhar, Tapan Datta etc. came to their house, were not found in her previous statement recorded under Section 161 Cr.P.C.. In her further cross-examination, she stated that the pump house was situated at about 100 mtr. away from her house.

9.3. PW-3, the victim girl (name withheld), deposed that at the time of incident she was studying in class VI. She went out for tethering their cattle towards the pump house and when she was about to return home and came infront of the pump house, the accused who was the pump operator came out and holding her hands took her inside the pump house. Then her skirt and pant were removed and the accused had sucked her breast and inserted his fingers into her vagina. She further deposed that the accused had left her and asked her to leave the pump house after seeing her mother coming out of the house.

9.4. PW-4, Sri Bhusan Debnath and PW-5, Smt. Sukla Debnath, were declared hostile.

9.5. PW-6, Smt. Chandrabati Dhar, wife of Ganesh Dhar appearing before the court deposed that about 3 months back oneday, Sanju Das Sarkar (PW-

2) came to her house and reported that her victim daughter was taken by the accused inside the pump house and after removing her wearing apparels the accused pressed her breast and she also inquired about her husband, but, her husband was absent on that date as he went to Belonia to participate in a public meeting of Chief Minister. During her cross-examination, she denied the suggestion that the accused did not bring the victim inside the pump house and touched her private parts.

9.6. PW-7, Sri Ganesh Dhar, also deposed in the similar tune regarding the incident, as narrated by PW-2, but, his attention was drawn to some of his statements regarding the presence of Gouranga Dhar, Tapan Datta, Raju Das, Bhusan Debnath and other villagers in the house of PW-1 since the Page 7

statement about their presence was found to be absent in his previous statements recorded under Section 161 Cr.P.C.

9.7. PW-10, Dr. Jayabati Reang and PW-11, Dr. Bidyut Chakraborty, who had medically examined the victim deposed that after examination of the victim girl it could not be opined that the girl was sexually assaulted as they found her private parts intact and no injury was apparently detected.

10. I have given my thoughtful consideration to the aforesaid evidences and the arguments advanced by the learned counsel appearing for the parties. I have also perused the statements of the victim girl recorded under Section 164(5) Cr.P.C.

11. It is found that the victim (PW-3) was all along consistent in her statements that on that fateful day she went to tether the cattle. While she was returning to her home, the accused being a pump-operator had taken her inside the pump-house room and disrobed her and touched her breast and inserted his fingers into her vagina. She was there for about 30 minutes. Thereafter, the accused had asked her to leave the place after seeing her mother coming out of the house. The pump house is situated at a distance of about 100 mtr. from the house of the victim. Being freed by the accused, the victim (PW-3) came to her house and narrated the incident to her step-mother (PW-2). PW-2, then went to the house of PW-6 and PW-7. She found PW-6 in the house and reported the incident that her daughter was sexually assaulted by the accused. She also inquired about her husband (PW-7), but, PW-2 was reported that her husband was not in the house as he went to participate in a public gathering at Belonia. This statement of PW-2 has been corroborated by PW-6 that after the incident PW-2 went to her house and reported the incident to her. On her advise, she informed the matter to her husband (PW-1). PW-1 having arranged a bike returned to the house when he was informed about the incident by both PW-2 and PW-3.

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12. I do not find any merit in the submission of learned senior counsel for the appellant that there is serious discrepancy or contradiction in the statement of PW-2 that she was in the house and her daughter narrated the incident to her after returning to the house. Here, it is noticed that, the victim girl did not say that she had seen her mother coming out of the house. It is the accused who had seen PW-2 coming out of her house and asked the victim to leave the pump house. Furthermore, the victim (PW-3) nowhere has stated that she narrated the incident to PW-2 at a place other than the house, where her mother was at that point of time.

13. In my opinion, it is not at all contradiction and I do not find any discrepancy in the statement of the victim girl (PW-3). PW-1 returned back to the house on being informed by telephone call by PW-2 when he was reported about the commission of offence by the accused upon his daughter (PW-3). It is very natural that after commission of such incident, the parents first inform about such incident to their neighbours and seek advise. In the case in hand also similar thing had happened. I find nothing wrong in the conduct of PW-1 to approach the scribe first to write the complaint. It is the duty of the police to arrange medical treatment for the victim at the very first instance which was exactly done by the police. It is settled proposition of law that injury in the private parts is not a sine qua non to establish the sexual assault or rape.

14. Having found the statement of the victim as well as PW-2 are credible and trustworthy and being consistent all along, which could not be shaken by the accused at any point of time, I do not find any merit in the instant appeal. Accordingly, the instant appeal stands dismissed. The accused-appellant, namely, Gopal Datta, shall serve the remaining period of sentence.

15. It is informed by the learned counsel appearing for the parties that the accused-appellant, Gopal Datta, is on bail. As such, the accused-appellant is directed to surrender before the court of learned Special Judge, Belonia, South Page 9

Tripura within a period of 2 (two) weeks from today to serve the remaining period of sentence. It is made clear that if the accused-appellant, Sri Gopal Datta fails to surrender before the court within the said stipulated period, then, the learned Special Judge shall ensure his surrender to the jail to serve the remaining period of sentence in accordance with law.

16. Consequently, the judgment and order of conviction and sentence returned by the learned Special Judge, South Tripura, Belonia stands affirmed and upheld.

Send down the LCRs.

JUDGE

Saikat