Sri Subal Bhowmik vs The State Of Tripura
2021 Latest Caselaw 1281 Tri

                      THE HIGH COURT OF TRIPURA
                            AGARTALA

                           CRL A 24 OF 2019

Sri Subal Bhowmik,
S/o Late Girindra Bhowmik of Maharanipur (Das Para),
PS Kalyanpur, District-Khowai, 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. Ghosh,
                               Additional Public Prosecutor.

Date of hearing and          : 21.12.2021
date of delivery of
Judgment & Order

Whether fit for reporting : No

                        Judgment & Order (Oral)

This appeal is directed against the judgment and order of

conviction and sentence dated 05.07.2019, passed by learned Special

Judge, khowai District, Khowai, in connection with case No. Special

(POCSO) 08 of 2015 whereby and whereunder the convict-appellant has

been convicted under Section 8 of Protection of Children from Sexual Page 2

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

along with a fine of Rs.5,000/- with default stipulation.

2. Short facts of the case are that one Rakhi Das, lodged a written

complaint before the Officer-in-Charge, Teliamura Police Station stating

inter alia that on 08.09.2014, at about 12:30 hours, her minor daughter

[name withheld], aged about 10 years, went out a little distance from their

house for letting their goats. At that time, Subal Bhowmik, the accused-

appellant [here-in-after referred to as the accused] on getting her minor

daughter alone grabbed her arms and tried to remove her wearing pant and

also pressed her breast. Her minor daughter started to cry loudly and when

the complainant moved forward upon hearing cry of her minor daughter,

the accused had fled away.

3. On the basis of the said complaint, O.C., Teliamura P.S. had

registered an FIR. Investigation was carried on. During investigation, the

investigating officer recorded the statements of the victim girl under

Section 164(5) of CrPC. The I.O. also recorded the statements of the

available witnesses. Thereafter, on being satisfied with the allegations, I.O.

submitted charge-sheet against the accused.

4. Learned Special Judge after receipt of the copy of the police

report, took cognizance of the same. At the commencement of trial, charge Page 3

was framed against the accused under Section 8 of the POCSO Act. It was

read over to the accused to which he pleaded not guilty.

5. To substantiate the said charge, the prosecution had introduced

as many as 13 witnesses. The prosecution also introduced some documents

including the birth certificate [Exbt.6] of the victim girl.

6. After conclusion of trial, the accused was examined under

Section 313 CrPC to which he denied all the allegations levelled against

him and also adduced two defence witnesses as DW-1 and DW-2.

7. Having heard the learned counsels appearing for the parties

and on consideration of the evidence and materials on record, learned

Special Judge held the accused guilty of committing offence punishable

under Section 8 of the POCSO Act and sentenced him as aforestated.

8. 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.

9. I have heard Mrs. S. Chakraborty, learned counsel appearing

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

appearing on behalf of the State-respondent.

Page 4

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

appellant submits that the age of the victim girl has not been proved. The

mother of the victim deposed that her victim daughter was born at IGM

hospital but the certificate issued by the village panchayat reveals that she

was born at Maharanipur. Moreover, according to learned counsel for the

appellant, there is no explanation as to why delay of one day was caused in

lodging the FIR. Mrs. Chakraborty, learned counsel further submits that the

learned Special Judge ought to have acquitted the accused since the age of

the victim girl has not been proved and conviction under Section 8 of the

POCSO Act is not at all maintainable.

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

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

establish the case beyond reasonable doubt. The age of the victim girl has

been proved on the basis of record. The Block Development Officer,

Krishanu De [PW-12] himself appeared before the court along with the

Register of births and deaths and he proved the date of birth of the victim

girl after comparing the same with the said Register.

12. Having considered the aforesaid submissions of the learned

counsels of the parties, I have also perused the evidence of the prosecution

witnesses and the evidence of DW-1 and DW-2.

Page 5

13. PW-1, the victim girl in her evidence deposed that on the

fateful day at about 12:30 hours, she went to a Teak garden for letting their

goats. At that time, the accused also went to that place followed by her and

instructed her to fasten the goats in a tree in the jungle. While she was

fastening the goats with a rope, the accused caught hold of her from her

back side and forced to lie her down on the earth and started pressing her

chest. PW-1 further deposed that when the accused tried to disrobe her, at

that time, she raised alarm and after hearing alarm her mother rushed to the

place when the accused had fled away. Her mother had seen Subal

Bhowmik fleeing away from the place of occurrence. She confirmed her

statements [Exbt.1] recorded under Section 164(5) of CrPC where she put

her signature [Exbt.1/1].

Nothing material could be elicited from her cross-examination.

14. The mother of the victim girl deposed as PW-2. She wholly

corroborated the statements which she stated in the FIR as well the

statements made by PW-1.

15. Next vital witness is Krishanu De, the B.D.O. who deposed as

PW-12. He deposed that he was posted as BDO of Teliamura RD Block.

The birth certificate of the victim was registered on 08.04.2005 and the

same was issued from BDO, Teliamura RD Block on 29.04.2005. The birth Page 6

certificate bears the signature of Registrar of Laxmipur Gram Panchayat

and the counter signature of Additional District Registrar of Birth and

Death for Teliamura RD Block. PW-12 further deposed that as per existing

rules of birth and death registration, the issuing officer is the Registrar and

the certificate is countersigned by the Addl. District Registrar. He

confirmed the birth certificate [Exbt.6]. He deposed that he also brought the

Register where the date of birth of victim girl was recorded.

Nothing material could be elicited to controvert the deposition

of PW-12.

16. The accused had produced two witnesses, namely, Sri Tapas

Sinha as DW-1 and Sri Haripada Biswas as DW-2.

DW-1 deposed that on 11-09-2014 wife of Subal visited his

shop premises and informed him that a case was lodged by the complainant

stating that on 08.09.2014 Subal embraced a minor girl and in reply DW-1

told her that on that day Subal was in his business premises.

17. DW-2 also deposed in the similar tune.

18. It is seen that the wife of the accused was shown as a

prosecution witness. She deposed as PW-8, but, during her deposition it Page 7

was found that she was deviating from her previous statements. As such

she was declared hostile by the prosecution.

19. On overall consideration of the evidence on record, I find that

the victim girl and her mother were all along consistent to the statements

that on the fateful date and time, the victim girl went to tie up their goats.

At that time, the accused was following her. When the victim girl had

arrived at the Teak garden, the accused told her to fasten the goat with a

tree. While she was fastening the goats with a rope, the accused embraced

her from her back side and also tried to disrobe her by falling her down on

the earth. She raised alarm, her mother had rushed to the spot. The accused

had fled away and while fleeing away her mother [PW-1] had noticed him.

I find no discrepancies in the statements of the victim girl and the mother,

PW-2 as well. The age of the victim girl has been proved beyond

reasonable doubt. The date of birth of the victim girl was recorded both in

the birth register as well as in the panchayat register as on 27.03.2005. In

view of this, I cannot agree with the submission of learned counsel

appearing on behalf of the appellant that the age of the victim girl has not

been proved by the prosecution.

20. In the result, the appeal fails and thus dismissed. The judgment

and order of conviction and sentence dated 05.07.2019, passed by learned Page 8

Special Judge, khowai District, Khowai, in connection with case No.

Special (POCSO) 08 of 2015 stands affirmed and upheld.

21. It is informed that the appellant Subal Bhowmik is on bail. His

bail bond is cancelled. He is directed to surrender before the learned court

below within a period of two weeks from today. It is made clear that if he

fails to surrender, learned Special Judge, Khowai District, Khowai shall

ensure his appearance in accordance with law 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