Sri Paresh Das vs The State Of Tripura
2022 Latest Caselaw 477 Tri

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                        HIGH COURT OF TRIPURA
                              AGARTALA

                              Crl. A. 6 of 2021

 Sri Paresh Das
 S/o- Late Balai Das,
 resident of Sachindranagar Colony
 PS-Jirania, District- West Tripura
                                                        ---Appellant
                                  Versus
 The State of Tripura
                                                          ---Respondent

For the Appellant(s) : Mr. T. D. Majumdar, Sr. Advocate : Mr. Biplab Debnath, Advocate For the Respondent(s) : Mr. S. Ghosh, Additional P.P.

 Date of hearing & delivery
 of Judgment & Order               :   04.05.2022

 Whether fit for reporting         : No


               HON'BLE MR. JUSTICE ARINDAM LODH

                    JUDGMENT & ORDER (ORAL)


              Heard Mr. T. D. Majumdar, learned Senior Counsel

assisted by Mr. Biplab Debnath, learned counsel appearing for the

appellant. Also heard Mr. S. Ghosh, learned Additional P.P. appearing for

the State-respondent.

2. This appeal is directed against the judgment and order of

conviction and sentence dated 06.02.2021, passed by the learned Special

Judge, West Tripura, Agartala, in case No. Special (POCSO) 35 of 2017

whereby and whereunder the appellant was convicted under Section 451

of the Indian Penal Code and sentenced to suffer simple imprisonment for

1(one) year and also to pay a fine of Rs. 5,000/- with default stipulation

and, further convicted the appellant under Section 354 of the Indian Penal

Code and in the alternative under Section 8 of the POCSO Act and

sentenced him to suffer Rigorous Imprisonment for 3(three) years with

default stipulation.

3. The facts of the case, in brief, are that, the mother (PW-1)

of the victim girl (PW-2) lodged a complaint with the Officer-In-charge

of Jirania Police Station stating inter-alia that on 27.06.2017 at about 8

am, the appellant entered into the house of the complainant when her

daughter was alone and forcibly grasped her minor daughter. At that time,

she slapped the appellant. Thereafter, the appellant ran away.

4. The said complaint lodged on 27.6.2011 was treated as

FIR. Investigation was carried out. Statements of the victim under

Section 164(5) of the Cr.P.C. were recorded by the Magistrate. The I.O.

arranged for medical examination of the victim girl, and thereafter,

recorded the statements of the available witnesses, and being found a

prima-facie case, the I.O. submitted charge-sheet against the accused-

appellant.

5. Having receipt of the charge-sheet, the learned Special

Judge had taken cognizance of the offence. At the commencement of

trial, charge was framed under Section 451 of the Indian Penal Code and

Section 8 of the POCSO Act, and further under Section 506 of the Indian

Penal Code.

6. On closure of recording evidences, the appellant was

examined under Section 313 of Cr.P.C. wherein he denied all the

allegations levelled against him by the prosecution witnesses and pleaded

to be innocent. Having heard the learned counsels appearing for the

parties, and on consideration of the evidences and materials on record,

learned Special Judge convicted and sentenced the appellant as afore-

stated.

7. Feeling aggrieved, and dissatisfied with the aforesaid

conviction and sentence, the convict-appellant has preferred the instant

appeal before this court.

8. Mr. T. D. Majumdar, learned senior counsel appearing for

the appellant submitted that the prosecution has tried to project a false

case against the appellant. From the evidences of the prosecution

witnesses it comes to light that there was serious enmity between the

complainant and the appellant regarding the issue to demarcate the

boundary of their respective houses. Mr. Datta Majumdar, learned senior

counsel has further questioned that, how a person can enter into the house

in presence of mother of the victim and sexually harass her. Learned

senior counsel further submits that, during the course of evidence before

the learned trial court, PW-1 deposed that at that point of time her victim

daughter (PW-2) was alone in the house and she went to the paddy field

to supply tiffin to her husband, but, in the FIR, this statement is wholly

absent. Learned senior counsel has questioned if the statement of PW-1 is

believed that she went to the paddy field at that time, and taking the

advantage that the victim was alone, the appellant entered into the house,

then, how it would be possible for the complainant (PW-1) to slap the

appellant. As such, according to learned senior counsel, the complaint

was based on some concocted facts and circumstances out of enmity

between the complainant and the appellant, and the prosecution has

miserably failed to establish the charges levelled against him. Learned

senior counsel showing the order dated 06.07.2017 has drawn the

attention of this court that the learned trial court granted bail to the

appellant after 10 days from the date of occurrence, on consideration of

the health condition of the accused that he was suffering from brain

haemorrhage, and the appellant is still suffering from this ailment and at

present, he is more than 70 years old. Thus, learned senior counsel has

prayed for acquittal of the appellant.

9. On the other hand, Mr. Ghosh, learned Additional P.P. has

submitted that the learned trial Judge after considering the records and the

evidences thereof rightly convicted and sentenced the appellant.

According to learned Additional P.P., there is no reason to disbelieve the

victim (PW-2) and her mother (PW-1) that the victim had been sexually

harassed by the appellant.

10. I have considered the rival submissions of the learned

counsel appearing for the parties. I have perused the evidences and

materials on record. I have also perused the judgment passed by the

learned trial judge. On perusal of the complaint, I find that the

complainant (PW-1) has stated that she was in the paddy field when the

appellant entered into her house and sexually assaulted her minor

daughter (PW-2). She has stated in her complaint that when she found the

appellant pressing different parts of the body of the victim she made a

slap to the appellant, and thereafter, the appellant ran away.

11. During the course of her recording evidence as PW-1, she

has corroborated this vital piece of evidence that the appellant had

entered into the house when her victim daughter was alone and she went

to the paddy field to supply tiffin to her husband. On her return to the

house she found the appellant sexually harassing PW-2 by touching

different parts of her body. In cross-examination she denied that they had

any dispute regarding property matter with the appellant. PW-2 supported

the version of PW-1 and clearly stated that when she was alone in the

house, the appellant entered into the kitchen, where she was sexually

harassed.

12. I have given my thoughtful considerations to the evidences

and materials on record as well as the present age of the appellant. At the

time of hearing, the appellant on question of sentence has submitted that

he was attaining the age of about 71 years and at the fag end of his life.

The appellant also submitted that he was an ailing person unable to

perform his daily pursuits.

13. On overall consideration of the evidences and materials on

record, I am unable to arrive at a different finding than, that of the

findings as arrived at by learned trial Judge that the appellant is guilty of

committing offence, but, this court has some doubt about the commission

of offence under Section 8 of the POCSO Act. However, it has been

established by the prosecution that the appellant has sexually harassed the

victim girl (PW-2) as contemplated under Section 12 of the POCSO Act.

Accordingly, I am not inclined to interfere with the conviction of the

appellant. However, considering the gravity of offence, the sentence

recorded by the Ld. trial court under Section 8 of the POCSO Act is

converted to Section 12 of the said Act and considering the age of the

appellant, I sentence him to suffer Rigorous Imprisonment for 30 (thirty)

days along with a fine of Rs. 1,00,000/- (one lakh) to be paid to the

victim within a period of 2 weeks from today.

11. At this juncture, learned senior counsel has submitted that

the appellant has just been released from the hospital and he is not

physically fit. As such, I direct the appellant to surrender before the court

after 3 weeks i.e. on 25th May, 2022 without fail. It is made clear that, if

the appellant fails to deposit the fine money of Rs. 1 lakh to the court of

learned Special Judge, Court No. 2, West Tripura, Agartala, within the

specified period of 2 weeks, then, the sentence as declared by the learned

Special Judge in his judgment dated 06.02.2021 shall be restored, and in

that event, the appellant has to suffer the sentence of 3 years along with

fine in terms of the judgment passed by the learned Special Judge. It is

further made clear that since the appellant had already undergone 10 days

of imprisonment, this period of imprisonment shall be set off under

section 428 of Cr.P.C. The appellant shall have to suffer the remaining

period of sentence subject to fulfillment of the aforesaid conditions.

Accordingly, the instant appeal is partly allowed.

Send down the LCRs.

JUDGE

Rohit