Tripura High Court

Sri Uttam Nama vs The State Of Tripura on 29 August, 2022

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                      HIGH COURT OF TRIPURA
                             AGARTALA
                        CRL.A NO.13 OF 2021

Sri Uttam Nama,
S/o. Lt. Sadhan Ch. Nama,
Resident of Barjala, Madhyapara,
P.S.-West Agartala,
District- West Tripura.
                                               .....Appellant(s)
                              Versus
The State of Tripura.
                                         ........Respondent(s)

For the Appellant(s) : Mr. H.K. Bhowmik, Advocate.

For the Respondent(s) : Mr. S. Debnath, Addl. P.P.

Date of hearing and delivery of
Judgment & Order           : 29.08.2022

Whether fit for reporting    : YES/NO.

      HON'BLE MR. JUSTICE T. AMARNATH GOUD
                  J U D G M E N T & O R D E R(ORAL)

This is an appeal filed under Section 374 of

Criminal Procedure Code, 1973 against the impugned

judgment and order of conviction and sentence passed by

the learned Special Judge (POCSO), West Tripura District,

Agartala on 15.03.2021 in connection with the case bearing

Special(POCSO)20 of 2019 whereby the present appellant

was sentenced to suffer S.I. for 6 months. The present

appellant is also convicted under Section 354B of IPC in

alternative of Section 8 of the POCSO Act and to suffer R.I.

for a term of 3(three) years and to pay a fine of

Rs.15,000/- with default stipulation. Both sentences shall

run concurrently.

2. The fact of the prosecution case, in brief, is that,

P.W.1, Smt. Dipali Nama being the informant and the

mother of the victim (name withheld), has lodged a written

ejahar with the O.C. Agartala, Women P.S., West Tripura.

In the said ejahar, it is stated that on 12.02.2019 at about

20.05 hrs., her victim daughter was in the house alone and

the informant went to her workplace in the morning. She

alleged that at about 10.45 am, the appellant entered the

house, and taking advantage of the loneliness of her

daughter, the appellant touched the breast of her daughter

and also tried to undress her by removing her panty. It is

further stated that during the incident, the victim shouted

and raised alarm. After running out of her house, the victim

took shelter in the house of the neighbour, namely,

Narayan Biswas when the victim narrated the incident to

others. The informant prayed before the police to take

appropriate steps in that regard.

3. After the receipt of the aforesaid complaint,

Agartala Women P.S. registered a case bearing

No.WAW004/2019 under Section 448/354(B) of IPC and

Section 8 of POCSO Act, 2012 dated 12.02.2019 and

endorsed the same to be investigated by the WSI, Emily

Nandi, P.W.9, I.O. of the case.

4. Subsequently, after investigation, police filed the

charge sheet against the present appellant under Section

448/354/323 of IPC read with Section 8 of the POCSO Act.

5. Learned Special Judge, West Tripura District,

Agartala registered the case being Special (POCSO)2O OF

2019.

6. After perusal of the materials on record, the

learned Special Judge has framed charges which are

reproduced herein below:-

"(i) Whether on 12.02.2019 about 10.45 a.m. the accused committed house tress press by entering into the house of the informant at Barjala and thereby committed an offence punishable under Section 448 of the Indian Penal Code?

(ii) Whether on the above mentioned date, time and place, the accused used criminal force upon the victim daughter of the informant and after touching her breast, he tried to disrobe her by removing her panty and that he thereby

committed an offence punishable under Section354B of the Indian Penal Code?

(iii) Whether on the above mentioned date, time and place, the accused touched the breasts of the victim girl, a child and further with sexual intent, tried to remove her panty and that he thereby committed an offence of sexual assault punishable under Section-8 of the POCSO Act?

(iv) Whether on the above mentioned date, time and place, the accused caused hurt to the victim and that he thereby committed an offence punishable under Section 323 of the Indian Penal Code?"

7. In course of the trial, upon consideration of the

record and after hearing both sides, the learned Trial Court

framed the charge against the appellant under Section

448/354B/323 of IPC and alternatively under Section 8 of

the POCSO Act. The appellant pleaded not guilty and

claimed to be tried.

8. The prosecution has examined as many as 9(nine)

witnesses to substantiate the charge which are as follows:-

P.W.-1:- Smt. Dipali Nama(the informant). P.W.-2:- victim(name withheld).

P.W.-3:- Smt. Bina Das.

P.W.-4:- Smt. Soma Das.

P.W.-5:- Smt. Chitra Das.

P.W.-6:- Sri Rakesh Shil.

P.W.-7:- Smt. Jaya Biswas.

P.W.-8:- Sri Upendra Sharma.

P.W.-9:- S.I. Emily Nandi(I.O).

9. After completion of the recording of evidence of

the prosecution side, the appellant was examined under

Section 313 of Cr.P.C. to which he denied all the

incriminating materials which appeared in the prosecution.

Accordingly, two DWs were examined and those were 1)

Smt. Anima Nama, D.W.1 and Sri Loknath Roy, D.W.2.

10. After hearing the arguments of both sides and

perusing the evidence on record, learned Trial Court vide

judgment dated 15.03.2021 convicted and sentenced and

accused-appellant as mentioned herein-above.

11. Being aggrieved and dissatisfied with the impugned

judgment and order of convicting and sentence dated

15.03.2021, the appellant has preferred this instant appeal

and prayed for the following reliefs:-

"i. Admit the appeal as it is in time and filed observing all formalities;

ii. Issue notice upon the respondent state and call for the records from the learned Special(POCSO) Judge, Agartala, West Tripura, in c/w. Spl.(POCSO)20/2019;

iii. In the meantime, stay the order of conviction and sentence passed by the learned Special(POCSO), Judge, Agartala, West Tripura by his Judgement dated 15.03.2021;

iv. After hearing both sides your lordship would be kind enough to set aside the conviction and sentence passed by the learned Special Judge(POCSO), West Tripura District, Agartala on

15.03.2021 in connection with case Special(POCSO)20 of 2019 and may kindly be acquit the appellant from the charges with kind direction to set at liberty."

12. Heard Mr. H.K. Bhowmik, learned counsel

appearing for the appellant as well as Mr. S. Debnath,

learned Addl. P.P. appearing for the respondent.

13. Some prime witnesses to substantiate the charges

framed against the accused-appellant are as under.

14. P.W.-1, the mother of the victim is the informant.

She deposed that she works as a housemaid. On

12.02.2019 i.e. on the date of the incident, she left for her

job at about 9.00 am leaving her daughter alone in her

dwelling hut. At about 10.45 am, she received a call on her

mobile phone by which she was asked to immediately

return back home. She rushed back to her house and found

her daughter standing in front of her house along with her

grandmother and aunt. On being asked, the informant

stated to have heard from her daughter that after taking

food, the appellant entered into their dwelling hut and put

his hands on the breasts of the victim. The appellant also

tried to disrobe the victim by removing her panty. P.W.-1

deposed that the victim raised alarm, hearing which; local

people gathered into their house and detained the accused-

appellant. Subsequently, P.W.1 stated to have visited West

Agartala Women P.S. along with her daughter and lodged a

written complaint which was prepared as per her dictation.

P.W.1 identified her signature in the ejahar as Exbt-1/1.

The witness identified the accused-appellant in the Court

and as per her version, he was taken into custody by the

police on spot. P.W.1 further stated that on 13.02.2019

police seized the birth certificate of her daughter and she

put her signature on a seizure list.

During the cross-examination, the informant

revealed that she is staying in her marital house long

before the alleged date of the incident and that the elder

brother of the deceased husband along with her family also

resides in the same homestead land. She also admitted that

the accused-appellant is an employee of Barjala H.S. School

and that on the alleged morning prior to the incident, she

had visited the house of the accused. The informant further

revealed that there are several other houses situated

around her house including the house of one Narayan

Biswas. She also denied the suggestion that Rakesh Shil did

not write her ejahar or that on the alleged morning her

daughter was not alone in the house or that her sister-in-

law and elder brother-in-law were present. She also denied

the suggestion that on the alleged morning, the accused

came to her house as per her request and that when the

victim was about to consume a 500mg Paracetamol Tablet,

the appellant prohibited her not to have it without

consulting a doctor. The informant also denied the fact that

the appellant only touched the victim to check the

temperate or that she lodged a false case against the

appellant as he used to object her brother-in-law and his

associates from trafficking intoxicants. She also denied the

fact that the appellant never put his hand on the breast of

the victim or that he never tried to remove the party of the

victim.

15. P.W.-2, the victim is a child of about 13 years.

Before recording her deposition, the Court below tried to

test her ability of understanding and to give rational

answers in the question-answer format. Being satisfied with

her prudence and ability, her deposition was recorded. The

victim stated that on 12.02.2019 in the morning, she was in

the dwelling house of her uncle (elder brother of her

father), as her mother left for her job. At about 10/11 am,

her uncle went to the market after serving her food and

also asked her to take the medicine as she was suffering

from a fever. P.W.2 stated that after food when she was

about to take the medicine, one 'uncle' of their locality

appeared there, and on the pretext of checking her

temperature, he inserted her hands inside her wearing

apparel and touched her chest. She also alleged that the

'uncle' tried to remove her wearing panty for which, she

raised an alarm and rushed to a nearby house of Arpita

Biswas. She deposed that subsequently, her mother and

some police officials came to the house and she identified

the accused-appellant to be the said 'uncle' when his

picture was shown to her through a mobile phone display,

though she was unable to name him. The victim also stated

that she was produced before the Court where her version

was recorded. She further identified her signature (Exbt-

4/1) in the said statement.

The victim was cross-examined through Court

when she admitted that she did not narrate before the

police officer that the accused-appellant entered her house

at the time when her uncle was present. The above

statement (Exbt-1) is found to have been recorded by the

I.O. as the attention of the victim was drawn to her earlier

statement made under Section 161 of the Cr.P.C. The

victim subsequently, denied the suggestion that the

accused-appellant never put his hand on her chest and tried

to remove her panty. She also denied the suggestion that

the appellant touched her neck only to check her body

temperature, as she was suffering from fever or that she

deposed falsely.

16. P.W.-7, Smt. Jaya Biswas is the adjacent

neighbour of the informant who did not stand in conformity

with the expectation of the prosecution and she was

declared hostile. On questions being forwarded, the witness

stated that she knows the informant and her family well,

but could not say if the police visited her house or not. She

revealed that the appellant also is her neighbour.

Subsequently, she denied to have stated before the police

that the informant's daughter once came to their house

crying and on asking; she told them that the accused,

taking the opportunity of her loneliness, put his hand on her

chest and tried to remove her wearing panty. The witness

also denied to have stated before the police that the victim

narrated the incident to her daughter Arpita.

During cross-examination, the witness stated that

her husband usually leaves the house for his work at about

9.00 am and returns back in the evening. She also stated

that she leaves the house for her work at about 10.00 am

and her daughter goes to School usually at about 10.30

am. On being asked, the witness revealed that she was

never interrogated by the Police in connection with this

case.

17. The investigating officer deposed as P.W.-9 and

stated that on 12.02.2019, in the afternoon, an information

came to the police station that one minor girl has been

sexually harassed in the Barjala area, for which she was

asked to verify the matter. She stated to have attended the

place near Barjala Gas Office and found that the accused

appellant with bleeding injuries and under detention of the

local people. She stated to have taken the accused-

appellant with bleeding injuries and under detention of the

local people. She then took the accused to IGM hospital,

Agartala for his treatment and subsequently, took him to

the police station. She deposed that at about 8.05 pm, the

informant lodged her written complaint before the police,

which was received by O.C. S.I. Mina Debbarma and

registered the same as West Agartala Women P.S. Case

No.2019/WAW/004 and further filled up the printed form of

FIR. P.W.9 being a colleague of the O.C., identified her

receipt and registering note including her signatures on

both. It has been deposed by the witness that she was

endorsed with the charge of the investigation of this case.

During the investigation, she visited the P.O. and prepared

a hand sketch map along with the separate index. She also

examined the available witnesses and recorded their

statements under Section 161 of Cr.P.C. P.W.-9 deposed

that she arrested the accused-appellant and forwarded him

to the Court and also produced the victim before the

Magistrate for the recording of her statement under Section

164(5) of Cr.P.C. She also seized the birth certificate of the

victim and identified the seizure list. On completion of the

investigation, P.W.-9 stated to have found a prima facie

case against the accused appellant under Section 448/354B

of the IPC read with Section 8 of the POCSO Act and

submitted the charge sheet accordingly.

During cross-examination, she revealed that in the

first instance, she visited the P.O. in uniform on the basis of

a GDE number. To a question put forth, she stated that the

victim has stated to her that on the alleged morning, the

accused-appellant visited her house while her senior uncle

(jethu) was present. She further revealed that as per the

victim, she took shelter in the house of the neighbour,

Narayan Biswas, immediately after the incident, but she

only examined the wife of Narayan Biswas and nobody else

in that family. The investigating officer also admitted to

have not tried to ascertain the names and identities of

those local people who allegedly gathered at the alleged

spot on the relevant date. On being asked, she admitted to

have not ascertained nor examined the person who

allegedly informed the informant about the incident over

the telephone. It is also admitted by the I.O. that the

witness Soma Das did not state that she came to know

about the incident from the victim. The witness lastly

denied the suggestion that she never visited the P.O. nor

examined the witnesses Bina Das and Jaya Biswas or that

her investigation in perfunctory.

18. Mr. H.K Bhowmik, learned counsel appearing for

the accused-appellant submitted that the informant as well

as the victim has categorically stated that the incident was

firstly disclosed and narrated to the inhabitant of the

nearby house namely, Smt. Arpita Biswas, D/o Narayan

Biswas and Smt. Jaya Biswas. Neither Narayan Biswas nor

Arpita Biswas was examined by the prosecution. Smt. Jaya

Biswas, P.W.7 has supported the case of prosecution

though she was declared hostile. In the present case, after

careful scrutiny, it would be seen that neither the

neighbouring people nor the probable witnesses of the

nearby P.O. were examined. Only the relatives of the

informant from other paces were examined and produced

from the side of the prosecution and it is also evident that

they are contradictory to one another. As per the FIR i.e.

exhibit-1, the P.O. is the hut of the informant. P.W.-1

adduced the evidence that her daughter narrated to her

that the offence was committed by the accused-appellant in

the dwelling hut and at that time the Sr. uncle (Jethu) of

the victim served her food. But the Sr.uncle (Jethu) was not

produced before the Court. From the cross-examination of

the witnesses, of the prosecution, and from the defence

case, it came to light that there was enmity and unrest

between the victim's family and the family of the appellant.

It was also evident that the appellant was seriously

assaulted by the people who were very much associated

with the informant. Stating this, the learned counsel prayed

to allow this instant appeal.

19. Mr. S. Debnath, learned Addl. P.P. appearing for

the respondent submitted that the guilt of the accused-

appellant has been proved beyond reasonable doubt and

that the witnesses have sufficiently supported the case.

Learned Addl. P.P. further submitted that there is every

proof of the fact that the accused-appellant was detained in

the house of the informant and he also molested the victim.

Stating thus, learned Addl. P.P. urged to uphold the

judgment and order passed by the Court below as the same

is just and proper.

20. Heard both sides and perused the evidence on

record.

21. Before delving into the conclusion of this case, let

us reproduce the question No.25 of the examination of the

accused-appellant under Section 313 of Cr.P.C.:-

" Q. No.25- Do you have anything more to say about this case?

Ans:- The cause of grudge of the complainant is that I did not extend help in the matter of her son's admission to school. The son of the complainant's sister- in-law is a drug peddler and I have raised voice against him. So, I am implicated falsely."

22. It is categorically stated in the above-mentioned

question No.25 of the examination of the accused-appellant

under Section 313 of Cr.P.C., that the accused-appellant

was falsely implicated in this case, when he raised his voice

against the parents particularly, the brother-in-law of the

informant i.e., the mother of the victim-girl with regard to

involvement in Narcotic Drug cases. Further, this Court

feels that the evidence of P.W.2, the victim girl, and the

evidence of other witnesses are shaky. Hence the case has

not been proved beyond reasonable doubt by the

prosecution and the benefit of the doubt is extended to the

accused-appellant herein.