Tripura High Court
High Court Of Tripura vs The State Of Tripura on 28 March, 2022
Page 1 of 8
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) 3/2020
Sri Pramode Nama
son of late Prafullya Chandra Nama, resident of Roy Colony,
P.S. West Agartala, District- West Tripura
----Appellant
Versus
The State of Tripura ----Respondent
For the Appellant(s) : Mr. B. Deb, Advocate
For the Respondent(s) : Mr. S. Ghosh, Addl. PP
Date of hearing & delivery
of Judgment & Order : 28.03.2022
Whether fit for reporting : No
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT(ORAL)
28/03/2022
Heard Mr. B. Deb, learned counsel appearing for the appellant also
heard Mr. S Ghosh, learned Additional Public Prosecutor, appearing for the
respondent-State of Tripura.
2. The appellant, by means of filing the present appeal has challenged
the judgment of conviction and order of sentence dated 04.01.2020 passed
by the learned Special Judge (POCSO), West Tripura, Agartala, in
connection with case No. Special (POCSO) 60 of 2016 wherein the
appellant has been convicted under Section 10 of the POCSO Act, 2012 and
sentenced to suffer rigorous imprisonment for 5(Five) years and to pay a fine
of Rs. 20,000/- with default stipulation and further convicted under Section
451 IPC and sentenced him to suffer simple imprisonment for 6 months and
to pay fine of Rs. 5000 with default stipulation.
3. Brief facts are that, the mother of the victim girl (PW1) had lodged a
complaint with officer in-charge of Amtali police station on 06.09.2016 at
about 18:26 hours stating inter alia that when she and her husband were
outside their home, then, at around 2.00-2:30 p.m. the appellant had entered
into the room where her girl was staying. After entering into the room, the
accused locked the door and embraced her daughter and touched her private
parts.
4. On receipt of such information, the I.O. being endorsed by the officer-
in-charge of the police station started investigation, and during the course of
investigation, he recorded the statements of the witnesses. The investigating
Officer had also arranged for examination of the victim-girl under Section
164(5) of Cr.P.C. On such production, the concerned Magistrate recorded
the statement of the victim girl. On completion of investigation, the
investigating officer submitted charge-sheet being no. 100 of 2016 dated
20.11.2016 under Sections 448/342/354 IPC and section 8 of the POCSO
Act against the accused. On receipt of the charge-sheet, cognizance was
taken by the Special court. At the commencement of trial, charge was
framed against the accused under Sections 451/354 IPC and 10 of the
POCSO Act, to which the appellant pleaded not guilty and claimed to be
tried.
5. The prosecution to substantiate the charges adduced as many as 15
witnesses and introduced some documents which were exhibited by the
learned trial court. On closure of the prosecution evidence, the accused was
examined under Section 313 Cr.P.C. to which he denied all the allegations
and wanted to adduce evidence on his behalf. Accordingly, to controvert the
evidence let in by the prosecution witnesses, the accused had adduced two
witnesses including himself as DW-1 and DW-2. After completion of
recording of evidences and having heard the learned counsel appearing for
the parties, the learned Special Judge convicted and sentenced the accused,
as stated here-in-above. Hence, this appeal before this court.
6. Mr. Deb, learned counsel appearing for the appellant (here-in-after
referred to as the "accused") has submitted that there are substantial
contradictions in the statement of the prosecution witnesses. Mr. Deb, has
laid enough emphasis on the evidences let in by the defence witnesses i.e.
DW1 and DW 2. DW-1, is the accused, and DW-2, is a witness who
appeared before the trial court on being instructed by his superior officer.
DW-2 had produced the attendance register maintained for that date of
offence. Mr. Deb, learned counsel has tried to persuade this court that the
attendance register aptly proves that the accused was not present at the scene
of occurrence on that date and time. Mr. Deb, has pointed out that PW-4 has
deposed that she came to know about the sexual assault upon the daughter
of the complainant from the mother of the victim girl, but, the mother of the
victim girl deposing as PW-1 has never stated in her evidence that she
informed the matter to PW-4. Mr. Deb has further drawn attention of this
court to the improved and exaggerations made by the victim girl and her
mother (PW-1) in their statements. Showing the statements made by the
victim in her statement recorded under Section 164(5) Cr.P.C., Mr. Deb,
learned counsel has submitted this statement merely proves that the accused
had entered into the room of the girl and embraced her. She has never stated
that the accused had ever touched her private parts though the statements
were made just after the occurrence of the incident. Lastly, Mr. Deb has
submitted that this is a clear case of acquittal.
7. On the other hand Mr. Ghosh, learned Additional PP appearing for the
State-respondent has submitted that the presence of the accused at the scene
of occurrence on that fateful date and time has been proved beyond
reasonable doubt. There is no enmity between the complainant and the
accused-appellant. The neighbouring witnesses who deposed corroborating
the statements of the victim and PW-1 that the accused had tried to sexually
harass the victim girl also had no enmity with the accused-appellant.
According to learned Additional PP, presence of the accused at the scene of
occurrence has been proved beyond reasonable doubt.
8. I have considered the submissions of learned counsel appearing for
the parties, and have perused the records.
9. I have given my thoughtful considerations to the evidences brought on
record. According to me, the most vital witness of this case, naturally, is the
victim girl, who deposed as PW-2. PW-2, has categorically stated that after
collecting the key of the room from PW-4, she entered into the room and had
taken her lunch. Suddenly, the accused had entered into the room and closed
the door from inside. Thereafter, she deposed that the accused had touched
her private parts . She raised hue and cry and after hearing her hue and cry,
PW-4, rushed to the spot and she narrated the story to PW-4 when the
accused had fled away from the scene of occurrence. So, PW-4 appears to be
the next vital witness who supporting the version of PW-1 deposed that after
hearing hue and cry, she rushed to the spot and found the accused therein.
She asked PW-2 what had happened to her, when she narrated the incident,
which are stated here-in-above. There are other prosecution witnesses who
have stated that they had seen the accused coming out of the place of
occurrence. After hearing hue and cry they came to the house of the victim
girl where they came to learn about the incident. After 2 ½ hours, the parents
came when the victim narrated the incident to them. Thereafter, the mother
(PW-1) had lodged the complaint which was registered as FIR.
10. As I have stated earlier that from the defence witnesses, it appears that
the accused was working as a Contingent worker in ONGC and the
attendance register shows his attendance in the office on that date.
11. At the outset, I would like to make it clear that though the attendance
register maintained for that fateful day shows that the accused had attended
the office on that day, but, there is no such evidence that for any point of
time he had any scope to go outside his office. He was a contingent worker.
There is also some discrepancies regarding the lunch hour between DW-1
and DW-2. Except production of attendance register there is no evidence to
show that the accused was all along present in the office and did not go out.
The house of the victim appears to be close to the office where the accused
discharge his duties. So, the plea of alibi as taken by the accused, according
to this court, is found to be deficient.
12. Now, coming to the evidence of prosecution witnesses, I have seen
that it becomes impossible not to believe the presence of the accused at the
scene of occurrence. I am at a loss to understand as to why the victim will be
disbelieved when there is no interest to implicate the accused with a false
case. The prosecution witnesses have categorically stated that they have seen
the accused person on that fateful date and time and they found the victim
crying, and narrated the incident to them. However, question remains is the
degree of offence committed by the accused.
13. As I have noticed that the victim has not stated in her statement
recorded under Section 164(5) Cr.P.C. that the accused had touched her
private parts. She only has stated that the accused had embraced her and her
deposition before the learned court that accused had touched her breasts and
other private parts are found to be improved versions.
14. In this situation, in the opinion of this court, the offence committed by
the accused should not fall under the Section 10 of the Protection of
Children from Sexual Offences (for short, POCSO) Act. Having perused the
provisions of the POCSO Act, 2012 in my opinion, the offence as committed
by the accused may come within the purview of section 12 of the POCSO
Act. Section 12 of the POCSO Act, reads as under:-
"12. Punishment for sexual harassment- Whoever, commits sexual
harassment upon a child shall be punished with imprisonment of
either description for a term which may extend to three years and
shall also be liable to fine."
15. It is submitted by Mr. Deb, learned counsel, that the accused is aged
about 70 (seventy) years. As such, considering the nature of offence and the
age of the accused-appellant, according to this court, the appropriate
sentence should be punishment for 6 (six) months along with fine of Rs.
50000/- (rupees fifty thousand), which would be payable to the victim girl.
16. Accordingly, the conviction as returned by learned Special Judge has
not been interfered with. However, the sentence recorded by the learned
Special Judge is interfered with and the accused-appellant is sentenced to
suffer R.I. for a period of 6 (six) months with a fine of Rs. 50,000/- (rupees
fifty thousand), in default of such payment, the accused-appellant shall have
to suffer further simple imprisonment for 6 (six) months. The fine amount
has to be deposited in the court of concerned Special Judge within a period
of 6 (six) months from today. It is further made clear that the period of
imprisonment the accused-appellant had already undergone during the stage
of his arrest and trial, shall be set off. The accused-appellant is directed to
surrender before the court of learned Special Judge within a period of 7
(seven) days from the date of passing of this judgment, otherwise, the
learned Special Judge shall take all steps to arrest the accused-appellant to
serve the sentence, as ordered by this court.
17. With the above observations and directions, the instant appeal stands
allowed in part to the extent as indicated above, and thus, disposed of.
Send down the LCRs.
JUDGE
Puri
