Tripura High Court
Md. Abdul Jalil vs The State Of Tripura on 28 June, 2022
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. 8 of 2021
Md. Abdul Jalil,
S/o- Lt. Inchan Ali,
R/o- Kadamtala, Ward No. 04
P.S- Kadamtala,
Dist- North Tripura,
--Convict-Appellant
Versus
The State of Tripura
--Respondent
For the Appellant(s) : Mr. Anirban Bhattacharjee, Advocate
For the Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing and delivery
of Judgment & Order : 28.06.2022
Whether fit for reporting : No
BEFORE
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
Heard Mr. Anirban Bhattacharjee, learned counsel
appearing for the appellant. Also heard Mr. S. Debnath, Addl. P.P.
appearing for the State-respondent.
2. This appeal is directed under Section 374(2) of the Code of
Criminal Procedure, 1973 against the judgment and order of conviction
and sentence dated 16.03.2021, passed by the Ld. Special
Judge(POCSO), Dharmanagar, North Tripura in connection with Case no.
Special(POCSO) 33 of 2019, whereby and whereunder the convict-
appellant was convicted under Section 354A(1)(i) of the Indian Penal
Code and under Section 8 of the POCSO Act, and was sentenced to suffer
RI for 3(three) years and to pay a fine of Rs. 5,000/- (Rupees Five
thousand) with default stipulation.
3. The facts of the case, in brief, are that, the complainant,
Mst. Anuwara Begam lodged a complaint on 15.06.2019 to the Officer
In-Charge, Kadamtala P.S, Dharmanagar, stating inter alia that on
14.06.2019 at around 3:00 PM, when her victim-daughter [name is kept
withheld] aged about 12 years, went to collect firewood from jungle, the
convict-appellant, aged about 55 years, had committed rape upon her
daughter. Her daughter did not divulge this fact to her on the date of
incident i.e. on 14.06.2019. On the next date, i.e. on 15.06.2019 at
around 12:00 noon, the accused again tried to catch up her daughter and
only then, the victim girl raised alarm and informed her about the incident
which occurred on both 14.06.2019 as well as on 15.06.2019.
4. On receipt of the complaint, investigation was carried out.
During the process of investigation, the statement of the victim girl was
recorded under Section 164(5) of the Cr.P.C by a Magistrate. The victim
girl was also medically examined. After completion of investigation, the
Investigating Officer submitted charge-sheet.
5. After receipt of the copy of the charge-sheet, learned
Special Judge framed charge against the convict-appellant under Section
511 IPC read with Section 376 of the IPC as well as under Section 8 of
the POCSO Act, 2012.
6. To establish the charges the prosecution examined as many
as 11(eleven) witnesses including the victim girl and the defence also had
adduced 2(two) witnesses.
7. On consideration of the evidences on record and after
hearing the arguments advanced by the learned counsels appearing for the
parties, learned Special Judge convicted the convict appellant under
Section 8 of the POCSO Act as well as under Section 354(1) of the IPC
as aforestated.
8. Feeling aggrieved, and dissatisfied with the aforesaid
conviction and sentence, the convict-appellant has preferred the instant
appeal before this court.
9. Mr. Bhattacharjee, learned counsel appearing on behalf of
the appellant submits that the appellant has been falsely implicated in this
case. He further submits that the prosecution has failed to establish the
charges framed against the appellant.
10. On the other hand, Mr. Debnath, learned Addl. P.P. has
defended the findings arrived at by learned the Special Judge in
convicting and sentencing the appellant.
11. I have given my thoughtful consideration to the
submissions advanced by the learned counsels appearing for the parties.
At the outset, I have gone through the initial statement of the victim girl
recorded under Section 164(5) of the Cr.P.C., wherein she has stated that
while she was proceeding towards the jungle, the appellant had followed
her. After a while, the appellant had tried to open her panty. She
screamed and on seeing the incident, her nephew ran to her aunt(paternal
aunt) Mst. Liljan Begam and informed the said incident to her. Her aunt
rushed to the place of occurrence when the appellant had left her and fled
away. The victim has further stated that on the following day when she
was on her way to a nearby shop, she saw the appellant driving one small
mini-truck and on seeing her, the appellant shouted at her.
Thereafter, I have perused her deposition during trial. She
deposed as PW9 where she has stated that in the jungle the appellant
suddenly caught her hold and hugged her, and suddenly pulled her panty
and removed it. She started shouting and her nephew, Sakil Ahmed had
rushed there when the appellant gagged her mouth. She further stated that
Sakil reported the matter to Niljan Begam(PW7) and she came to the PO.
On seeing her, the accused got frightened and fled away. She further
stated that after returning home she informed the matter to her mother
and on the next date her mother lodged the complaint.
During cross-examination, her attention was drawn to the
statements she made in her chief-examination in respect of the fact that
she has stated to the police as well as to the Magistrate that at the material
time Sakil was playing there and while she reached there, the appellant
called her and she was taken inside the jungle on the pretext that he
would give some firewood in the jungle and while they had entered into
the jungle the accused-appellant caught hold of her and gagged her mouth
and hugged her and pulled her panty and Sakil came hearing her
shouting. She has admitted that she has not made such statement neither
before the police nor before the Magistrate.
I find lot of discrepancies in the statements of the victim as well
as the complainant (the mother of the victim).
12. Next, vital witness, according to this court, is PW7, Mst.
Niljan Begam. She has deposed that when she was sleeping in her
dwelling hut on 14.06.2019, Sakil Ahmed had rushed to her and informed
the incident to her. She further deposed that Sakil told her that he had
seen the appellant to pull down the panty of the victim and also found the
appellant to lift his lungi upwards and he was doing some nuisance with
the victim girl.
Subsequently, Sakil had rushed to the spot and found the
appellant to run away from the spot. Thereafter, she has further deposed
that during her conversation with the victim she did not disclose anything
to PW7 and went back to her house.
It is revealed that Sakil Ahmed has not been produced
before the court to confirm the statements as deposed by PW7. For this
reason, the statements made by PW7 regarding the incident is hit by
Section 60 of the Evidence Act and cannot be taken into consideration.
Moreso, the statements she made regarding the episode appears to be first
time statement. From her evidence, it further reveals that she did not go to
the scene of occurrence as stated by the victim girl.
13. I have carefully perused the deposition as adduced by
defence. PW2 is an independent witness. From his evidence it is revealed
that there was quarrel between the complainant and the daughter of the
appellant regarding the damage of growing vegetables by the domestic
cattle belonging to the complainant. There was also Panchayat meeting in
respect of such incident and in the meeting itself, Anuwara Begam, the
complainant threatened the appellant that she would teach a good lesson
to him and others.
14. In view of serious discrepancies in the statements of
victim girl as well as the discrepancies surfaced in the statements of the
prosecution witnesses, in my opinion, the prosecution has failed to
establish the charges levelled against the appellant.
15. Accordingly, the instant appeal stands allowed and the
appellant, Md. Abdul Jalil is acquitted. It is informed that the appellant is
on bail. He is discharged from the liability of his bail bond. Surety is also
discharged.
Send down the LCRs.
JUDGE
Rohit
