Sri Bipad Bhanjan Roy vs The State Of Tripura
2021 Latest Caselaw 330 Tri

                      THE HIGH COURT OF TRIPURA
                            AGARTALA
                           CRL A 30 OF 2019

      Sri Bipad Bhanjan Roy,
      S/o Lt. Piyari Mohan Roy, resident of Ishan Chandra Nagar,
      PS-Amtali, District-West Tripura.

                                                            .... Appellant
            - Vs -

      The State of Tripura,
                                                          ....Respondent

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH

For the appellant : Mr. Sankar Lodh, Advocate

For the respondent : Mr. Samrat Ghosh, Additional Public Prosecutor.

Date of hearing and           : 15.03.2021
date of delivery of
Judgment & Order

Whether fit for reporting : NO

                       Judgment & Order (Oral)

Heard Mr. Sankar Lodh, learned counsel appearing for the

appellant as well as Mr. Samrat Ghosh, learned Additional Public

Prosecutor appearing for the State-respondent.

2. This appeal is directed against the judgment and order of

conviction and sentence dated 08.07.2019, passed in Case No. Special Page 2

(POCSO) 37 of 2016 by the learned Special Judge (POCSO), West Tripura,

Agartala, whereby and where-under the appellant was convicted and

sentenced to suffer R.I. for 1 (one) year along with a fine of Rs.2,000/- with

default stipulation for the offence under Section 354 of the Indian Penal

Code (for short, IPC) and also to pay another fine of Rs.500/- with default

stipulation for the offence under Section 448 of IPC.

3. The prosecution case, in brief is that, the victim girl was

watching television at her room. At that time, the accused-appellant entered

into her room and within a short while he gave bites on her two breasts

around the nipple. Her mother called her from the tube-well. She went to

the mother and narrated the incident when accused had left the house of the

victim. The mother, PW-1 informed the matter to the father of the victim

regarding the incident. The father came to the house. Both the parents had

taken the victim girl to the Hapania Government Hospital. She was treated

there. Thereafter, they came to the Police Station and lodged the FIR.

4. Being endorsed, the investigating officer carried out the

investigation and after being satisfied with the prima facie case, submitted

the charge-sheet.

5. Charge was framed by the learned Special Judge against the

accused under Section 8 of the Protection of Children from Sexual Page 3

Offences (for short, POCSO) Act, 2012 and Sections 354/448 of IPC to

which the accused pleaded not guilty and claimed trial.

6. In course of trial, as many as 12 witnesses were examined by

the prosecution including three Doctors and the investigating officers.

7. At the closure of recording evidence, the learned Special

Judge examined the accused under Section 313 of CrPC when he was

noticed about all the incriminating evidences as surfaced against him to

which he denied all the allegations levelled against him by the prosecution

witnesses and claimed that those allegations were false.

8. Learned Special Judge after hearing the arguments advanced

by the learned counsels appearing for the parties recorded the findings of

guilt against the accused-appellant and accordingly convicted and

sentenced the accused-appellant as stated here-in-above.

9. Being aggrieved by and dissatisfied with the said judgment

and order of conviction and sentence, the convict-appellant has preferred

the instant appeal challenging his conviction and sentence as aforestated.

10. Mr. Lodh, learned counsel appearing for the appellant has also

tried to persuade the court over some discrepancies here and there even in Page 4

the statements of PW-1, the informant; PW-2, the victim and PW-3, the

father of the victim.

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

Prosecutor submits that the accused caused bruises around the breasts of

the victim girl have been proved beyond reasonable doubt. Learned

Additional P.P. has submitted that the finding of PW-4, the Doctor, that

those bruises were caused by giving human bites.

12. Having considered the rival submissions of the learned

counsels appearing for the parties to the lis, I have surveyed the evidence

on record.

13. PW-1, the informant in her examination-in-chief has deposed

that while she was washing utensils in the tube-well of the house, her

daughter, i.e. the victim girl was in the room watching TV. At that time the

accused entered into the room and gave bites around her breasts. She

informed the matter to her husband over phone. Her husband came to the

house and they took her daughter to the Hapania Hospital where she was

examined. Doctor detected some bruises around the nipples of the breasts

of the victim girl. Thereafter, they came to the PS where she lodged the

complaint written by PW-6, Nirmal Majumder. Being read over and

explained the contents of the written ejahar to the informant, she being Page 5

satisfied puts her signature over the complaint. PW-1 further stated that her

daughter was taken to the Magistrate by the police. Magistrate recorded her

statement under Section 164(5) of CrPC. Police also interrogated her and

her husband and also recorded the statements of the victim girl under

Section 161 of CrPC.

14. The victim girl was examined as PW-2. Before recording her

statement, the learned Judge has tested her intelligence and being satisfied

about her ability and intelligence to give evidence, the learned Judge

proceeded to record her evidence. During deposition, the victim girl has

stated that while she was in a room and watching TV, the accused-appellant

who happens to be the uncle, entered into the room and after a short while

he caused bite on her breasts around the nipple. At that time, her mother

was washing utensils in the tube-well of the house, and in that meanwhile,

mother called her. She went to the mother, PW-1 and narrated the incident.

Immediately after knowing about the incident, the mother (PW-1) informed

the same to the father of the victim. She was taken to the hospital by her

parents where Doctors examined her.

15. PW-3 the father of the victim also deposed in the same tune.

PW-4 is Dr. Pradipta Narayan Chowdhury who examined the girl on Page 6

17.06.2016 i.e. after three days of the incident. On examination, PW-4

detected that those bruises were caused by human bite.

16. PW-8, Dr. Kalyan Brata De deposed that he examined the

victim on 15.06.2016 i.e. on the date of incident. He found bruises marks

around both sides of areola (surrounding area of nipple) of the victim girl,

and he opined that those bruises were caused by hard object.

17. The victim was also examined by PW-12 i.e. Dr. Nibedita

Talapatra on 15.06.2016 i.e. on the date of incident. She also detected some

bruise marks surrounding the nipples of the breasts of the victim.

18. The investigating officer collected the birth certificate of the

victim girl but it was returned to her mother after some days. The birth

certificate was not produced at the time of trial before the learned Special

Judge. The other witnesses are not so material to be discussed and will not

assist the prosecution in either way.

19. On close scrutiny of the evidence and considering the

submission of the learned counsels appearing for the appellant, in my

opinion, the oral testimony of the victim as well as PWs 1 and 3 are

consistent with the bite marks around the nipples of both the breasts of the

victim. It has also been proved that the accused was in the room when the

mother PW-1 was washing utensils at the tube-well of the house. The bone Page 7

of contention of Mr. Lodh, learned counsel for the appellant is that the two

Doctors, PW-8 and PW-12 who examined the victim girl on 15.06.2016 i.e.

on the date of incident itself did not tell specifically that those bruises were

caused by biting and the opinion of the another Doctor (PW-4) should not

be believed.

20. I find no merit in the said submission of learned counsel for

the appellant. All the three Doctors who examined the victim girl expressed

their firm opinion regarding detection of bruises. Two Doctors opined that

those bruises were caused by hard object. Only one Doctor i.e. PW-4,

Pradipta Narayan Chowdhury detected bruises as human bite marks. So, in

my opinion, ultimate finding should be that those bruises were caused by

biting teeth cannot be said to be soft objects. Mr. Lodh, learned counsel has

submitted that neither PW-1 nor PWs 2 and 3 had stated that on 17.06.2016

they went to PW-4 for treatment at Hapania Hospital. In my opinion, this

omission will not defeat the veracity and consistent oral testimony of the

three witnesses, particularly, PW-1, PW-2 and the victim girl. The bruise

marks were confirmed by all the Doctors and one Doctor opined that those

were the human bite marks. So, the injury caused by bruises as suffered by

the victim is consistent with the opinion of the Doctors. I find no

discrepancy in the opinion of the Doctors which supports the bruise marks Page 8

were caused by biting. Accordingly, I find no material to interfere with the

judgment of conviction and sentence as recorded by learned Special Judge.

21. The appeal, accordingly, stands dismissed. It is submitted that

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

of the convict-appellant is directed to produce him before the learned

Special Judge within seven days, else, the learned Special Judge shall

proceed in accordance with law.

Send back the LCRs.

JUDGE