Sri Bultan Das vs The State Of Tripura
2021 Latest Caselaw 252 Tri

                                   Page 1 of 7




                    HIGH COURT OF TRIPURA
                       A_G_A_R_T_A_L_A
                            Crl. A. No. 47 of 2019

      Sri Bultan Das, S/O Sri Narayan Das of Charakbai, P.O.
      Paschim Charakbai, P.S. Baikhora, District: South Tripura.
                                                       .....Appellant

                                -V E R S U S-

      The State of Tripura.
                                                      ..... Respondent.

B_E_F_O_R_E HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. R. G. Chakraborty, Advocate.

For Respondent(s)           :      Mr. S. Ghosh, Addl. P.P.
Date of hearing
and delivery of
judgment and order          :      01.03.2021
Whether fit for reporting   :      NO

                   JUDGMENT & ORDER [ORAL]

Heard Mr. R. G. Chakraborty, learned counsel appearing for the accused-appellant also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.

[2] This present appeal is directed against the judgment and order of conviction and sentence dated 06.09.2019, passed by the learned Special Judge (POCSO), South Tripura, Belonia, in case No. Special (POCSO) 22 of 2017, whereby and whereunder, the appellant has been convicted under Section-8 of Protection of Children from Sexual Offences [POCSO, for short] Act, and under Section-451 of IPC and sentenced him to suffer RI for 3[three] years and also liable to pay a fine of Rs. 2,000/- with default stipulations for the offence under Section-8 of POCSO Act and further sentenced to suffer RI for 6[six] months and to

pay a fine of Rs. 1,000/- with default stipulations for the offence under Section- 451 of IPC.

[3] The prosecution case as projected by the learned Special Judge is as under:

"2. The prosecution agency came into motion on filing of a complaint made by the father of the victim on 15.07.2017 to the effect that on 14.07.2017 at about 7 a.m. the informant and his wife left their house for working purpose likely to other days and their minor girl (name withheld) was alone in their house. After completion of their works at about 3 pm they came back to their house and found accused Bultan Das rashly leaving their house through the back side and fled away. On entering inside the dwelling hut they found their minor daughter lying on bed in unconscious condition and when she regained her sense she expressed that taking the opportunity of her loneliness accused Bultan Das forcefully raped her in her bed. Thereafter, they informed the matter to the local leaders and as per their advice the informant lodged this case."

[4] On the basis of the aforesaid complaint, the Officer-in- charge of Baikhora Police Station registered the case under Baikhora P.S. Case No. 2017/BKR/040 under Sections-448/376 of IPC and Section-4 of POCSO Act, 2012 and endorsed the case to S.I. Tapas Kr. Das for investigation. The Investigating Officer [I.O, for short] after receipt of the case documents, visited the place of scene of occurrence, recorded the statements of the available witnesses including the victim, arranged for recording her statement under Section-164(5) of Cr. P.C. before the Megistrate, seized the wearing apparels, prepared the hand sketch map of the scene occurrence with separate index.

[5] Thereafter, the I.O. submitted charge sheet against the convict-appellant under Sections-448/376 (1) of the IPC and Section-4 of POCSO Act. Cognizance was taken after receipt of the charge-sheet. Charges were framed against the accused-appellant. In order to prove the charge, prosecution had examined as many as 9 witnesses and introduced

some documents including the medical examination report of the victim as well as the accused and the report of the Tripura State Forensic Science Laboratory [TSFSL, for short]

[6] After completion of recording evidences, the accused- appellant was examined under Section-313 of Cr. P.C., where he denied all the incriminating evidences adduced by the prosecution witnesses against him.

[7] Having heard the learned counsel appearing for the parties, the learned Special Judge convicted and sentenced the accused as aforestated. Feeling aggrieved, and dissatisfied with the said judgment of conviction and sentence, the accused-appellant has preferred the instant appeal.

[8] Mr. R.G. Chakraborty, learned counsel appearing for the convict-appellant submits that the learned Special Judge acquitted the appellant from the charge of Section-376 and Section-4 of IPC but, convicted and sentenced the accused-person under Section-8 of the POCSO Act. Mr. Chakraborty, learned counsel for the appellant has challenged the sustainability of the judgment and order of conviction and sentence as passed by the learned Special Judge.

[9] On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent has submitted that there is no reason to disbelieve the statement of the victim girl substantially corroborated by her parents, PWs-2 & 4 and other witnesses. It leads me to peruse the evidence of PW-1, the victim girl, is as under:

"6. Victim as PW-1 has stated that, on 14.07.2017 she was alone at home at noon. She claimed to have known accused Bultan Das as Bultan Das used to visit her neighbour Rupan Das and in one occasion Bultan came to the house of Rupan Das to cut a tree.

According to her, Bultan came to their house on that day and informed her that her mother asked him to cut a tree in their house and she asked him to come later as her parents were not at home. Thereafter, on completion of her household works, she felt asleep. All on a sudden, she felt that someone hugged her in the cot and she found it was accused Bultan Das. She started resisting, but Bultan gagged her mouth and she became senseless and when she regained sense, she found her mother standing by her side. Her mother informed her that when she arrived at home, found Bultan sleeping by her side on the cot and seeing her, Bultan fled away. She narrated the incident to her mother. According to her, in fact, her father also arrived at home, but when she narrated the incident to her mother, her father was outside the hut. After that, her father lodged a case against the accused Bultan Das. She also admitted that she was produced before a Magistrate and she gave statement before Magistrate and signed on the statement and she proved her signature on the statement as exhibit-1. She also admitted that she was produced before medical officer at Baikhora hospital and she was medically examined. The day she was examined before this Court, accused was absent; as such she could not identify the accused in the dock. According to her, her date of birth is 15.06.2002.

During cross-examination she denied the fact that she had been maintaining relationship with Bultan. She admitted in cross that, on the day of occurrence her father was at his place of work and her mother went to the house of her grandfather. She admitted during cross that, she stated to the Magistrate that when she woke up she found Bultan sleeping over her and she tried to raise alarm, but accused resisted and she struggled with him and consequently she fell down on the floor and that at 3 pm her mother spread water on her face and she regained her sense and narrated the incident to her mother. Before the Magistrate she also stated that on the date of occurrence, at around 12/1 pm she was alone at home. She also admitted that, she was also examined by police and she stated to the I/O that, after taking meal she felt asleep, but all on a sudden, she could sense that someone hugged her, she opened her eyes and found Bultan hugged her and was removing her panty and Bultan threatened her to keep mum, otherwise, she would be killed. She also admitted that, she stated that Bultan forcibly raped her, but she stated that she has forgotten whether she stated to the Magistrate that when she woke up, she found Bultan hugged her and Bultan threatened her with dire consequence and removing her panty then he raped her. She was further cross-examination subsequently on the prayer of defence where she admitted that she made the following statement before the Magistrate, "suddenly I woke up and felt that B ultan Das was lying on my body. I tried to raise alarm, then he

obstructed me and there scuffling took place, as a result, I fell down on the floor and I lost sense" and admitted that after she lost sense she could not say what happened."

7. PW-2 is the father of the victim. According to him, on 14.07.2017 at about 3 pm he and his wife returned home. He found Bultan Das in the veranda and his wife entered into the hut. He also entered and found his victim daughter lying naked on the cot. Immediately, he came out of the hut. His wife spread water on the fact of his daughter and that time he was standing in the veranda. He heard his daughter stated to his wife that Bultan came to their house and enquired about them and left. Subsequently, Bultan again came and struggled with victim while she was sleeping in the cot and raped her and he took up the issue with one local member, Smt. Chakraborty whose name she has forgotten and also took up the issues with one woman whose name also she could not recollect. He stated that they assured a settlement, but his brother-in-law, Subrata Bhowmik told him that it is not a compoundable dispute and he lodged case on the following day and he proved his signature in the ejahar as exhibit-

2. He is also a seizure witness in respect of wearing apparels of the victim and proved his signature in the seizure list as exhibit-3. He is also another seizure witness in respect of seizure of school certificate and birth certificate of his victim daughter and he proved his signature in that seizure list as exhibit-4. He also proved the birth certificate of the victim as exhibit-5.

8. Exhibit-5 is the birth certificate of the victim (PW-1) issued by the Department of Health and Services, Government of Tripura, Gram Panchayat Charakbi and also sign of Addl. District Registrar, Birth & Death Unit, Jolaibari R.D. Block, South Tripura and that birth certificate shows that the victim was born on 15.06.2002 having registration No. B-2017:16-90070-000002 and date of registration was 03.03.2017 and the father's name of the victim is also available in the said birth certificate. In this regard I like to refer a decision of the Hon'ble High Court of Tripura passed in Crl. A.J. 16 of 2017 delivered on 22.02.2019. In that judgment in para-7 (sub-para-8) Hon'ble High Court observed as follows:

"When the birth certificate maintained by the Registrar of Birth and Death is produced before the court the said certificate has to be treated as the public document, acknowledged by Section 74 of Indian Evidence Act, unless it is shown that the record was not prepared by the authority as declared under the said Act."

PW-4 is the mother of the victim. She also stated that the victim was born on 15.06.2002. So, I find that the age of the victim is supported by the parents and also by the birth certificate. So,

there is no ground to disbelieve the exhibit-5 which is duly corroborated by the parents of the victim. Incident took place on 14.07.2017. So, the victim was only 15 years one month old at the time of incident, and thus minor.

9. From the evidence of the mother of the victim, PW-4 it appears that, on 14.07.2017 in the morning her husband went for work and at around 10 am she also went out of her home in connection with some works. Her son, a student of Class-VIII also went to school. Her victim daughter was at home as she asked her not to go to school for that day. According to her, at around 3 pm, she returned home and found accused Bultan Das was fleeing out of their house. She entered into the living hut and found victim lying on the cot almost unconscious. She made her free and comfortable by pouring water on her face and on her query she informed that Bultan Das came to their house in disguise of cutting a tree which she asked him few days back and victim informed the accused to come on later and after that her victim daughter went for sleep. Then accused Bultan came again and raped her forcibly. According to her, her husband also returned with her, but her husband was standing in the courtyard while she enquired the victim. Immediately, she informed the incident to her husband and her husband also enquired the victim and the victim narrated the incident to him as well. Then her husband went to her paternal house and informed her father, Tapan Bhowmik. Within 15/20 minutes father of PW-4 arrived. Her husband went to one Sankar Bhowmik, a leading panchayat person and also informed one Ajit Sarkar. In the evening, she took up the issue with one Bimal Baidya and they advised them to lodge a case. Since they consulted with so many people, they could not lodge case on that day. On the following day, her husband lodged this case. She also stated that victim was taken to Baikhora hospital for medical treatment and one police officer seized blood sample, pubic hair, and vaginal swab of the victims collected by a medical officer and she signed in the seizure list and she proved her signature in that seizure list as exhibit-6. She also proved her signature in the seizure list in respect of the school certificate and birth certificate of the victim as exhibit-4/2.

During cross-examination of the victim, father of the victim and mother of the victim, defence suggested that victim had love affairs with the accused Bultan Das. defence also suggested to PW-4 that, PW-4 wanted to give marriage of the victim with the accused Bultan which the witness denied and also suggested since Bultan refused to marry the victim, present case was falsely manufactured and that was also denied by the witnesses.

10. PW-3, Sri Tapan Bhowmik is the father of PW-4, the mother of the victim. According to him, on 15.07.2017 one police officer

seized the frock of her grandchild i.e. the victim and he noticed red and white stain on the frock and victim had this frock as her wearing apparel when she was raped by the accused and he signed in the seizure list in respect of that wearing apparels as witness which he proved as exhibit-3/1. He also proved his signature in the seizure of the birth certificate of the victim as exhibit-4/1. Beyond that, his evidence has got no value."

[9] Having the birth certificate confirming her age proved, there is no other alternative, but, to draw a finding that at the time of occurrence, the victim girl was aged about 15 years i.e. below of age of consent. The SFSL report does not support the case of rape and the learned Judge has not committed any wrong to discard the charge framed against the accused appellant under Section-376(1) and Section-4 of the POCSO Act. But, evidence is galore that the accused-appellant had gagged the mouth of the victim and committed sexual assault as defined under Section-7 of the POCSO Act.

[10] I find no material to interfere with the findings of guilt as arrived at by the learned Special Judge. Accordingly, the judgment and order of conviction and sentence stands un-interfered and the same is upheld and affirmed. Accordingly, the appellant is directed to surrender before the Baikhora Police Station within 7[seven] days from the date of receipt of copy of the judgment. A copy of the judgment may be sent to the Officer-in-charge of Baikhora Police Station as well to the learned Special Judge, South Tripura, to take steps in accordance with law.

JUDGE

A.Ghosh