Sri Sudhir Shil vs The State Of Tripura
2021 Latest Caselaw 1271 Tri

                        THE HIGH COURT OF TRIPURA
                              AGARTALA
                              CRL A 23 OF 2019
Sri Sudhir Shil,
S/o Sri Jogesh Shil of village South Sonaichari,
P.O. South Sonaichari, PS-Belonia, District-South Tripura.
                                                                  .... Appellant
            - Vs -

The State of Tripura,
                                                                 ....Respondent

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For the appellant : Mrs. S. Chakraborty,Advocate.

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

Date of hearing and            : 18.12.2021
date of delivery of
Judgment & Order

Whether fit for reporting : No

                           Judgment & Order (Oral)

Heard Mrs. S. Chakraborty, learned counsel appearing for the

accused-appellant. Also heard Mr. S. Debnath, learned Addl. Public

Prosecutor appearing for the State-respondent.

2. By means of filing the present appeal, the accused-appellant has

challenged the judgment and order of conviction and sentence dated Page 2

09.07.2019, passed by learned Special Judge, South Tripura, Belonia in case

No.5(POCSO) of 2017 whereby and whereunder the appellant has been

convicted under Section 8 of Protection of Children from Sexual Offences (for

short, POCSO) Act and sentenced him to suffer R.I. for 3(three) years and to

pay a fine of Rs.2000/- with default stipulation.

3. The prosecution case, in short, is that on 14.12.2016 at about

10:00 am, the victim along with her sister went to the grocery shop of the

accused-appellant [here-in-after referred to as the accused] with a view to

purchase rice and when the victim asked the rate of rice per Kg., at that time,

the accused came down from the platform, hugged her and pressing her

breasts outraged her modesty. The sister of the victim dragged her and freed

the victim from the clutch of the accused when the victim slapped on his face.

Hearing her alarm, her another sister and sister-in-law came to the spot and

seeing them the accused fled away from there. The victim informed the matter

to their Panchayat Pradharn (PW-6) who advised her to take shelter of law.

Thereafter, she lodged the complaint.

4. On the basis of the said complaint, the Officer-in-Charge, Belonia

Police Station had registered an FIR under Section 354 of IPC and Section 8

of the POCSO Act and endorsed the case to WSI Rubi Bala Baidya for

investigation. During investigation, the I.O. recorded the statements of the Page 3

victim girl as well as other witnesses. The statements of victim were recorded

under Section 164(5) of CrPC by the Magistrate. Thereafter on completion of

investigation, the I.O. submitted charge-sheet. Cognizance was taken by

learned Special Judge.

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

accused under Section 354 of IPC and under Section 8 of the POCSO Act.

6. To substantiate the charges, the prosecution had examined as

many as 10 witnesses.

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

under Section 313 CrPC wherein, he pleaded to be innocent. Thereafter, the

accused had adduced evidence of one Uma Nanda Tripura as DW-1.

8. Having heard the arguments advanced by learned counsels

appearing for the parties, learned Special Judge held the accused guilty and

convicted and sentenced the accused as aforestated.

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.

Page 4

10. During trial, the victim being PW-1 deposed that on 14.12.2016,

at around 10:00 am, she went to the grocery shop of Sudhir Shil, the accused,

along with her elder sister Kanika. She asked the rate of rice per Kg. when the

accused replied that the rate was Rs.27/28.00 per Kg. The accused was on the

platform of the shop. Suddenly, he came down from the platform and dragged

her towards a corner inside the shop and started pressing her breasts by hands.

She delivered a slap on his face. Her sister Kanika having rushed to the spot

dragged her hands and started to free her from the clutches of the accused.

Thereafter, they returned home immediately and informed her father, her

sister-in-law Punimala and her cousin sister, Adinmala Tripura. They went to

the shop of accused along with her. Her father enquired the matter with the

accused, Sudhir Shil. At the outset, the accused had taken a plea that all on a

sudden he collided with her and he begged apology to her father. However,

her father ultimately took up the issue with the local Panchayat Pradhan. They

advised to take the shelter of law. Accordingly, she went to the police station

accompanied by her sister Manimala and her brother Manik where she lodged

the ejahar [Exbt.1]. She identified her signature in the ejahar. She further

deposed that on the following day of the incident, learned Magistrate had

recorded her statement.

Page 5

During her cross-examination, the defence tried to contradict her

by asking a question that in the FIR she did not state that the accused dragged

her to a corner inside the shop. Nothing else was elicited from her cross-

examination.

11. PW-2, Kanika Tripura deposed that she along with her victim

sister went to the shop of the accused. Her sister (victim) wanted to know the

price of rice per Kg. Accused had replied, but, all on a sudden, he came down

from the platform of the shop and asked her sister to a corner of the shop and

started molesting her breasts. She further deposed that she dragged the hand of

her victim sister and rescued her. Immediately, after returning back to home,

they informed the matter to their family members.

Her evidence could not be shaken by the defence during cross-

examination.

12. PW-3, Smt. Adinmala Tripura is the cousin sister. She deposed

that she along with others were in the house when the victim and PW-2 after

returning to home narrated the incident that was happened at the shop of the

accused. She along with other members of the family went to the shop where

the accused had begged apology.

13. PW-4 also deposed in the similar tune of PW-3.

Page 6

14. PW-5 deposed that he issued a school certificate being a teacher

of the school where the victim used to study. The police seized the said school

certificate by preparing a seizure list. He identified his signature [Exbt.3] in

the said seizure list.

Nothing material had been elicited from his cross-examination.

15. PW-6 is one of the vital witnesses being the Panchayat Pradhan

who was informed immediately after the incident by the victim and her

relatives and they narrated the incident. He corroborated the evidences of PW-

1 and her father that on the following day they narrated the incident to him

when he advised to take shelter of law.

16. PW-7, Smt. Punimala Tripura being the sister-in-law of the

victim deposed in the similar tune as that of PW-3.

17. PW-8 is the I.O. who investigated the case. PW-9 is the O.C. of

the police station who endorsed the case to PW-8 for investigation.

18. PW-10 is the Headmaster of the school who issued the certificate

after perusal of the register. He further deposed in his examination-in-chief

that without perusing the certificate, he could not say what was the date of

birth as per admission register of the victim girl.

Page 7

19. The only witness as adduced by the accused as DW-1, namely,

Sri Upa Nanda Tripura deposed that on being asked, the accused had refused

to sell rice on credit as earlier dues was also not paid. After sometime, father

of the victim went to the shop of the accused and enquired when the accused

again reiterated that unless the previous credit was paid, he would not sell rice

on credit further. He deposed that he was present in the shop of accused at that

time. DW-1 further deposed that Jitendra, the father of the victim had uttered

that he would see the accused. Thereafter, the victim had lodged the case.

DW-1 further stated that his house is adjacent to the house of Jitendra Tripura

who is his elder brother. Subsequently, local people compromised the dispute

of Jitendra and accused Sudhir.

During cross-examination, he stated that he was customer of the

accused. The questions put by the Court, DW-1 stated that 5 months back

from the date of incident they settled the dispute in presence of Panchayat

Pradhan. It was settled that since they were close neighbours, the matter

should come to an end. He denied the suggestion that in the meeting they held

neither Jitendra Tripura nor Sudhir Shil guilty of committing offence.

20. I have given my thoughtful consideration to the evidence and

materials on record. On perusal of the evidence carefully, it comes to fore that

the victim girl was all along found to be consistent to her statement that she Page 8

along with her sister Kanika, PW-2 went to the grocery shop of the accused.

Victim wanted to know the price of rice per Kg. At that time, the accused was

on the platform of the shop. Suddenly, he came down and dragged the victim

into a corner inside the shop. There, the accused pressed her breasts. On her

alarm, PW-2 came to the spot and dragged her sister to separate her from the

clutches of the accused. After being freed, the victim had made a slap upon the

accused. They immediately returned back to their home and informed the

incident to the inmates of the house. Her parents along with her cousin sister

and others came to the shop of the accused. At the outset, the accused had

taken a plea that he suddenly collided with the victim girl and thereafter he

begged apology. However, the victim along with others went to the house of

Panchayat Pradhan [PW-6]. They narrated the incident to him who advised

them to take the shelter of law. Accordingly, FIR was lodged by the victim.

21. I have also perused the statements of the victim girl which were

recorded under Section 164(5) of CrPC. I find the principal part of the

statements that she went to the shop of the accused where the accused had

pressed her breasts taking her into a corner of his shop.

22. One noticeable feature in this case is that the prosecution has

failed to establish the age of the victim girl. The prosecution has produced a

school certificate. The certificate issued by a teacher is not a public document.

Page 9

The teacher or the Headmaster of the school appearing before the court could

not say the source of recording date of birth of the victim girl. Admission

Register was also not produced. The law is settled in this regard. Hence, in my

opinion, the age of the victim girl which is stated to be 15 has not been

proved.

23. Since the age of the victim girl has not been proved in the instant

case, according to me, the accused should not be convicted under Section 8 of

the POCSO Act. However, the offence has been proved that the accused had

outraged the modesty of the victim girl. Accordingly, the conviction recorded

under Section 8 of POCSO Act has been converted to Section 354 of IPC. The

judgment and order of conviction and sentence passed by learned Special

Judge convicting and sentencing the accused under Section 8 of the POCSO

Act is set aside and quashed.

24. The accused-appellant, Sudhir Shil is hereby convicted under

Section 354 of IPC and sentenced to suffer rigorous imprisonment for 1 (one)

year along with a fine of Rs.2000/-. The fine money shall be paid to the

victim.

25. Accordingly, the judgment and order of conviction and sentence

dated 09.07.2019, passed by learned Special Judge, South Tripura, Belonia in

Special 5(POCSO) of 2017 is modified to the extent as indicated above.

Page 10

With the aforesaid orders, the instant appeal stands allowed in

part.

26. It is informed by learned counsels appearing for the parties that

the appellant is on bail. His bail bond is cancelled. Accordingly, the appellant,

Sudhir Shil is directed to surrender before the learned court below within three

weeks from today. If he fails to surrender within the said stipulated period,

learned Special Judge shall ensure his surrender to the court in accordance

with law to serve the remaining period of sentence and payment of fine. Fine

money, if realized, the same shall be paid to the victim.

The period of imprisonment already undergone by the accused-

appellant after his arrest or during trial shall be set off.

Send down the LCRs forthwith.

JUDGE