High Court Of Tripura vs The State Of Tripura
2021 Latest Caselaw 384 Tri

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                      HIGH COURT OF TRIPURA
                             AGARTALA
                         Crl. A(J) 69/2019
      Sri Biki Debnath
      son of Sri Uttam Debnath, resident of Matarbari, Bhumihin
      Colony, P.S. RK Pur, Udaipur, District- Gomati, Tripura
                                                       ----Appellant
                    Versus
      The State of Tripura                                   ----Respondent
For the Appellant(s)            :      Mr. HK Bhowmik, Legal Aid Counsel
For the Respondent(s)           :      Mr. S. Ghosh, Addl. PP
Date of hearing and delivery
of judgment & Order        :           22.03.2021
Whether fit for reporting       :      No

                    HON'BLE MR. JUSTICE ARINDAM LODH
                                    JUDGMENT

This appeal is directed against the judgment of conviction and order of sentence dated 29.08.2019 passed by the learned Special Judge, Gomati Judicial District, Udaipur in connection with case No. Special (POCSO) 17 of 2018 whereby and whereunder the appellant has been convicted under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO) and sentenced him to suffer rigorous imprisonment for 3(three) years and to pay a fine of Rs. 3,000/- with default stipulation.

2. Heard Mr. HK Bhowmik, learned Legal Aid counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the respondent-State.

3. Based on a complaint dated 07.08.2018 lodged by the complainant, Smt. Swapna Das (PW-1), mother of the victim (PW-2) stating inter alia that her nine years old daughter 'M' (name withheld) on call went to the house of the accused, the appellant herein, on 01.08.2018 to play ludo and at that time, the accused-appellant with dishonest intention opened the panty of 'M' and lifted the frock upward. 'M' raised hue and cry and one Sagar Debnath (PW-3) of the neighbouring house who was present at the same room had scuffled with the

accused-appellant to free 'M' from his clutch and in that process 'M' slipped away from the hands of the accused-appellant and rushed to her mother and narrated the incident. The complainant confronted the accused, but, misbehaved with her also.

3. The complaint was registered with Officer-in-Charge of RK Pur Women police station and, accordingly investigation was carried out. During investigation, statement of the victim 'M' was recorded under Section 164(5) Cr.P.C.. Thereafter, after completion of investigation the investigation officer has submitted charge-sheet against the accused-appellant under Section 354 IPC and Section 12 of the POCSO Act.

4. On receipt of the charge-sheet, the accused was supplied with the copies of the prosecution papers and charge was framed against the accused-appellant under Section 354(B) IPC and under Section 8 of the POCSO Act. Charge was read over and explained to the accused in Bengali to which the appellant pleaded not guilty and claimed to be tried.

5. During trial, the prosecution had examined 8 witnesses and introduced some documents like school certificate to substantiate the age of the victim and, accordingly, the statement of the victim was recorded under Section 164(5) Cr.P.C. At the closure of the evidences, the accused was examined under Section 313(1)(b) Cr.P.C., where the appellant denied all the allegations levelled against him stating that the evidences, as let in by the prosecution were false. Having heard the learned counsel for the parties, the learned Special Judge convicted the accused under Section 8 of the POCSO Act read with section 354 IPC and sentenced him to suffer 3 years rigorous imprisonment being the higher punishment. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence, the appellant has referred this appeal.

6. Mr. Bhowmik, learned Legal Aid counsel appearing for the appellant has submitted that there are three sets of evidences, as surfaced from the prosecution witnesses. The statement of the informant appears to be different

than that of the statements of the victim and other witnesses. As such, it is a case to substantial improvement and exaggeration of the prosecution version and, for this reason, the appellant deserves to be acquitted.

7. On the other hand, Mr. S. Ghosh, learned Additional PP has defended the judgment passed by the learned Special Judge and has submitted for upholding the judgment.

(a)

8. The rival submission of the learned counsel has prompted me to have a look into the evidences let in by the prosecution witnesses to test whether the prosecution has been able to prove the foundational facts based on which the prosecution case was set in motion.

9. At the outset, I would like to peruse the statement of the victim 'M'. 'M' has deposed that on the date of incident the appellant went to her house when she was asked to play ludo with him and the appellant took her to his house, but, did not play any ludo. At that time, one Sagar Dada (PW-3) was also present inside the room of the appellant. Then, the appellant opened her panty and put it on the mosquito net and lifted her frock upward and he put his head under her frock. Sagar Dada was engaged in scuffling to remove her from his clutch and in that process she ran away and went to the house of Sagar Dada. Thereafter, she went to the house where her mother was working and narrated the incident.

Being confronted with the cross-examination, she has stated that she did not mention in her statement recorded under Section 164 and 161 Cr.P.C. that the appellant had put his head under her frock and Sagar scuffled with the appellant to remove her and in that meanwhile, she ran away. Rests are all suggestions, which are denied by the witness.

11. PW-1, is the mother of the victim (PW-2). She deposed that at the time of the incident, the victim was aged 9 years. After the incident, the victim went to her and informed her that the appellant took her to his room and opened her panty and put the panty on the mosquito net thereby making her naked. Then she came home and asked the appellant about the incident, but, he scolded her.

The matter was informed to the guardian of the appellant, but, in vain. Nothing material has been elicited from her cross-examination. Only some suggestions were given which she denied to be true.

12. Next vital witness is PW-3, Sagar Debnath. He has deposed that on the date of the incident, the accused-appellant took him and the victim to his house to play ludo, but, he did not play ludo and went to sleep. Then, they all three laid down on the bed, like, first the appellant, then he himself and then 'M'. Since the appellant was tickling him, he put the victim in the middle. Then, the appellant opened the panty of the victim and put it on the mosquito net and, thereafter, he lifted her frock and put his head under the frock. He tried to separate them and in that meanwhile, the victim had fled away to their house and, subsequently, the victim informed her mother.

In the cross-examination, PW-3 denied the suggestions put forth by the defence that the appellant did not put his head under the frock and lifted her frock.

13. The investigating officer (PW-8) has stated that she did not seize the frock and other wearing apparels of the victim.

14. I have compared the testimony of the victim with her statement that she made in her 164(5) Cr.P.C.. It is found that the victim has stated before the learned Magistrate that the appellant laid her on the ground and removed her panty and kept it over the mosquito net. She requested PW-3 to stop the appellant and then PW-3 tried to separate the appellant and the victim. She cried out and took her panty and went out of the room. On close scrutiny and evaluation of the aforesaid evidences, according to me, the prosecution has been able to substantiate the foundational facts of the case. Whatever may be the discrepancies here and there, the foundational fact to the effect that the victim and PW-3 went to the house of the appellant on being asked by the appellant to play ludo is established.

15. Next circumstance is that all of them have slept together is established. Next circumstance, that the appellant had lifted the frock upward and put his

head under the frock also is established. The said action of the appellant attracts and comes within the definition of Section 8 of the POCSO Act.

16. It is settled law that when prosecution succeeds to prove the foundational facts, then, the burden shifts upon the defence to disprove such foundational facts. Here, when the prosecution has been able to prove the foundational facts regarding the charge framed against the appellant, it was the obligation of the accused-appellant to discharge his burden of innocence, but, the defence did not adduce any evidence. His innocence also cannot be gathered from the prosecution witness on the principle of reverse burden.

17. Having held so, I do not find any merit in the present appeal and the conviction and sentence as returned by the learned Special Judge against the appellant are confirmed.

18. Before parting, I must appreciate Mr. HK Bhowmik, learned Legal Aid Counsel to render his service towards the convict.

19. A copy of the order be supplied to Mr. HK Bhowmik, learned Legal Aid counsel.

Send down the LCRs.

Pending application(s), if any, stands disposed of.

JUDGE

Saikat