Sri Ratan Lal Banik vs The State Of Tripura
2022 Latest Caselaw 71 Tri

                                Page 1 of 11




                     HIGH COURT OF TRIPURA
                           AGARTALA
                     CRL.A.(J) NO.19 OF 2019
Sri Ratan Lal Banik,
S/O Sri Rakhal Chandra Banik,
R/O Saradapally, P.S. Kumarghat,
District-Unakoti, Tripura.
                                                         ........... Appellant(s)
                                 Versus
The State of Tripura
                                                     ........... Respondent(s)

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For appellant(s) : Mr. R.G. Chakraborty, Advocate For Respondent(s) : Mr. Sumit Debnath, Addl. P.P.

Date of hearing and delivery
of judgment & order               :        20.01.2022
Whether fit for reporting         :        NO

                   JUDGMENT & ORDER(ORAL)

This is an appeal under Section 374(2) of CrPC

against the judgment and order of conviction and sentence

dated 25.01.2019, passed by learned Special Judge,

Kailashahar, Unakoti Tripura in case No. Special (POCSO) 30 of

2015, whereby and whereunder the appellant has been

convicted under Section 4 of POCSO Act, 2012 and sentenced to

suffer RI for 8(eight) years and to pay a fine of Rs.10,000/- with

default stipulation.

2. Heard Mr. R.G. Chakraborty, learned counsel

appearing for the appellant. Also heard Mr. Sumit Debnath,

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

3. The prosecution case was set in motion on the basis

of a complaint lodged by the grandmother (namely Smt. Shila

Chakraborty, PW1) of the victim, wherein she stated inter alia

that the accused had sexually assaulted her grand-daughter by

inserting his fingers to the private part of the victim, since he

failed to insert his penis into the private part of her grand-

daughter. Her grand-daughter was aged above 6(six) years but

below 7(seven) years. As she felt pain, she was taken to hospital

on the next day where she was treated for 4/5 days. PW1 made

statements before WSI PW19 in the hospital itself orally, which

were written by the said police officer.

4. The allegations made in the complaint were

investigated after the complaint was registered by the Officer In-

charge of the Police Station.

During investigation, statements of the available

witnesses were recorded. The victim was taken to the Magistrate

for examination under Section 164(5) of CrPC. She was

medically examined.

5. After conclusion of investigation, the investigating

officer had submitted charge-sheet against the accused-

appellant.

6. With the commencement of trial, charges were

framed against the accused-appellant under Section 376(2)(i) of

the Indian Penal Code as well as Section 4 of the Protection of

Children from Sexual Offences Act(POCSO), 2012, which were

read over and explained to the accused. The accused-appellant

pleaded his innocence.

7. To establish the charge, the prosecution had

examined 19(nineteen) witnesses altogether and introduced

some documents including the birth certificate of the victim girl.

After conclusion of recording evidence, the accused

was examined under Section 313 of CrPC when the allegations

made against him by the prosecution witnesses were brought to

his notice, but he denied those allegations as false. The accused-

appellant did not adduce any evidence on his behalf.

8. Having heard the learned counsels and considering

the materials available on record, the learned Special Judge

convicted and sentenced the accused as afore-stated.

Hence, this appeal before this Court.

9. Mr. Chakraborty, learned counsel appearing on

behalf of the accused-appellant (for short, "accused") has

submitted that there are lots of discrepancies in the statements

of the prosecution witnesses. Mr. Chakraborty, learned counsel

has strenuously argued that PW14 and PW15, though they being

the tenants of the same house, were not informed about the

incident which is surfaced from their depositions. It has further

been submitted that PW15 stated during his evidence that the

accused had no adverse report regarding his character.

10. On the other hand, Mr. Debnath, learned Addl. P.P.

has submitted that the case of the prosecution has been well

proved. Learned Addl. P.P. has strongly defended the findings

returned by the learned Special Judge while convicting and

sentencing the accused. Mr. Debnath, learned Addl. P.P. has

invited my attention to the statements of PW2(victim) and PW1,

grandmother(informant) and particularly the evidence of PWs 5,

6 and 7, who are the tenants of the same house and who were

informed by the victim about the incident just after the

occurrence.

11. Considering the aforesaid submissions, I have gone

through the evidences on record and the judgment passed by

the learned Special Judge. Having scrutinized the evidence of

PW2, the victim, I have found that she appears to be very

consistent to her statements made during her examination

under Section 164(5) of CrPC and also during her deposition

before the Court. She has categorically deposed that during day

time of the same day the accused called her and tried to

penetrate his penis into her private parts, but he failed to do so.

Thereafter, again in the evening, she was called and she was

given a chocolate. At that time, the accused told her to suck his

penis, and at that time, the accused was also moving his fingers

in and around her private part. She cried. Thereafter, the

accused had left her. On her cry, PW6 came, when she narrated

the incident to her.

Her aforesaid depositions could not be shaken by the

defence.

12. Next, I have perused the evidence of PW6, who

deposed that she was in her room and watching TV, when she

heard the cry of the victim and she came out. On being asked by

her, the victim(PW2) told her that the accused, Ratan Banik took

her to his room by showing a chocolate and opened his gamcha

and asked her to suck his penis. Then, she informed her

grandmother, who also came and the victim also disclosed the

same to her grandmother.

13. At this juncture, I deem it fit to peruse the evidence

of PW1, the grandmother. She deposed that on 07.10.2015, at

about 5.30 pm, she was busy in the household work. At that

time, one of her tenants, Dipali(PW6) called her and told that

the victim was crying. Then, she(PW1) came out and asked the

victim what happened to her. On being asked, the victim told

that the accused called her by showing chocolate when she was

sitting on the verandah of their house and she went as per his

call to his rented room where he opened his wearing gamcha

and asked her to such his penis. She further deposed that he

forcefully entered his penis in her mouth to which she became

horrified and started crying and thereafter, the accused ran out

from his room. At that time, PW6, Dipali noticed the victim

crying. She further deposed that her grand-daughter(victim) felt

pain on her private parts. On the next day, she was taken to the

hospital and she was treated there for 4/5 days. She further

deposed that she lodged the ejahar in the hospital.

Nothing variations are found in her cross-

examination.

14. Having gone through the judgment of the learned

Special Judge, it comes to light that the learned Special Judge

has discussed the evidences of all the prosecution witnesses. I

have duly considered the submission of learned counsel

appearing on behalf of the accused that PW14 and PW15 were

not informed about the incident. In my opinion, since they were

not informed about the incident on that night, the prosecution

case should not be thrown away. It is the wisdom and

satisfaction of the IO as to how he would carry the investigation

to establish the offence.

15. I have taken into consideration that the victim had

been consistent in her statements that the accused touched her

private part and allured her to suck his private part. The said

incident was immediately informed to PW6 and PW1. The

evidences of PW1 and PW6 can be considered as evidence of res

gestae and is relevant under Section 6 of the Evidence Act. In

view of the aforesaid direct evidence, non-examination of doctor

does not cause any miscarriage of justice to the accused.

16. Lastly, Mr. Chakraborty, learned counsel has urged

the Court that the offence committed by the accused should fall

under Section 7 of the POCSO Act, which deals with 'sexual

assault‟, but not under Section 4 of the POCSO Act.

To find out the merits of the above submission, I

may take note of Section 7 of the POCSO Act, which defines

'sexual assault‟. It reads as under:

"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

17. Section 3 defines „penetrative sexual assault‟ which

reads as under:

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the

urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."

Sub-Section (b) of Section 3 of the POCSO Act

envisages that if one inserts, to any extent, any object or a part

of the body, not being the penis, into the vagina, the urethra or

anus of the child or makes the child to do so with him or any

other person, then, it would fall within the purview of definition

of 'penetrative sexual assault‟. Section 4 of the Act prescribed

„punishment for penetrative sexual assault‟.

Before amendment of Section 4 in the year 2019,

the punishment prescribed for committing 'offence' under

Section 3 of the POCSO Act, the period of imprisonment was

prescribed for a term which shall not be less than 7(seven)

years, but, which may extend to imprisonment for life, and shall

also be liable to fine. But, after amendment, the period of

imprisonment was prescribed for a term which shall not be less

than twenty years, if a child is below sixteen years under

Section 4(2) of POCSO Act.

18. Learned Special Judge came to a finding that the

accused had touched the vagina of the victim by his fingers with

sexual intent. It has not been proved that the penis or any

object penetrates the vagina of the victim by the accused.

Though doctor was not examined but the investigating officer

has categorically deposed that the doctor in his report opined

that there was no sign of injury in the private part of the victim

girl. Furthermore, it has come to light that the accused had tried

to persuade the girl to suck his penis. The victim has not said

anywhere that she sucked the penis of the accused on such

persuasion.

19. In view of this, in my opinion, in the instant case,

the offence comes within the ambit of definition of Section 7 and

Section 9 of the POCSO Act and not under Section 3 of the

POCSO Act.

Admittedly, the girl is below twelve years. Sub-

Section (m) of Section 9 of the Act defines "aggravated sexual

assault‟ which reads as under:

"9. Aggravated sexual assault.--(a) xxx xxx--

         (b) xxxx    xxxx            xxxx      xxxx
         (c) xxxx    xxxx            xxxx      xxxx
         (d) xxxx    xxxx            xxxx      xxxx
         (e) xxxx    xxxx            xxxx      xxxx
         (f) xxxx    xxxx            xxxx      xxxx
         (g) xxxx    xxxx            xxxx      xxxx
         (h) xxxx    xxxx            xxxx      xxxx
         (i) xxxx    xxxx            xxxx      xxxx
         (i) xxxx    xxxx            xxxx      xxxx
         (k) xxxx    xxxx            xxxx      xxxx





           (l) xxxx  xxxx      xxxx      xxxx

(m) whoever commits sexual assault on a child below twelve years; or

(n) xxxx xxxx xxxx xxxx

(o) xxxx xxxx xxxx xxxx

(p) xxxx xxxx xxxx xxxx

(q) xxxx xxxx xxxx xxxx

(r) xxxx xxxx xxxx xxxx

(s) xxxx xxxx xxxx xxxx

(t) xxxx xxxx xxxx xxxx"

20. Section 10 prescribes 'punishment for aggravated

sexual assault‟ and it stipulates that whoever, commits

aggravated sexual assault shall be punished with imprisonment

of either description for a term which shall not be less than five

years but which may extend to seven years, and shall also be

liable to fine.

21. In the instant case, learned Special Judge has

sentenced the accused to suffer imprisonment for eight years

under Section 4 of the POCSO Act. Learned Special Judge has

not noticed the period of imprisonment before 2019 since the

offence of the instant case took place before the amendment

was carried out which came into effect from 16.08.2019.

According to Section 4, the period of imprisonment should not

be more than seven years. However, since I have recorded a

finding that the offence committed by the accused in the case in

hand falls within the purview of the definition of Section 9, the

minimum punishment should not be less than five years.

22. Considering the nature of the offence as committed

by the accused, I am not inclined to punish him to suffer

maximum punishment as prescribed under Section 10 of the

POCSO Act. In my opinion, if the accused is sentenced to suffer

imprisonment for a term of five years, then, it would be

proportionate to nature of offence. The accused shall also liable

to pay fine and a fine of Rs.600/-(rupees six hundred) is

imposed upon the accused by this judgment and order, failing

which the accused shall suffer imprisonment for further three

months.

23. Ultimately, the sentence to suffer imprisonment for

eight years under Section 4 of the POCSO Act as imposed by

learned Special Judge is modified and reduced to suffer

imprisonment for a period of five years along with fine of

Rs.600/- taking into account Section 10 of POCSO Act. It is

informed at the Bar that the accused has been in jail for last

three years. Needless to say, the accused is to serve the

remaining period of sentence.

24. With the aforesaid modification of sentence, the

instant appeal stands allowed.

Send down the LCRs.

JUDGE