Tripura High Court
Sri Setu Ghosh vs The State Of Tripura on 28 May, 2022
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HIGH COURT OF TRIPURA
AGARTALA
Crl. A. 3 of 2021
Sri Setu Ghosh
S/o- Late Jatindra Ghosh,
Resident of West Mashaul,
P.S- Fatikroy, District- Unakoti, Kailashahar
---Appellant
Versus
The State of Tripura
(To be represented by the Ld. Public Prosecutor,
The Hon'ble High Court of Tripura)
---Respondent
For the Appellant(s) : Mr. Kawsik Nath, Advocate
For the Respondent(s) : Mr. S. Debnath, Additional P.P.
Date of hearing & delivery
of Judgment & Order : 28.04.2022
Whether fit for reporting : Yes/No
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
Heard Mr. Kawsik Nath, learned counsel appearing for the
appellant. Also heard Mr. S. Debnath, learned Addl. P.P. appearing for
the State-respondent.
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2. The present appeal is directed against the judgment and
order of conviction and sentence dated 09.02.2021, passed by the Ld.
Special Judge, Fast Track Special Court, Unakoti Judicial District,
Kailashahar, in Case No. Special (POCSO) 10/2019 whereby and
whereunder the appellant herein has been convicted under Section 8 of
POCSO Act and was sentenced to suffer simple imprisonment for three
years.
3. Facts
of the case, in brief, are that, on the fateful date and
time the victim was taken by the appellant to his nearby house. After they
entered into the room the appellant had closed all the doors and the
windows of the room. In the complaint it is stated that inside the room the
daughter of the complainant was sexually assaulted by the appellant.
4. The said complaint lodged by the father (PW-1) of the
victim girl was treated as FIR. Having registered the FIR, the Officer In-
Charge of the Police Station endorsed the case to the I.O. The I.O. during
his investigation recorded the statements of the prosecution witnesses and
also arranged for recording the statement of the victim girl under Section
164(5) of the Cr.P.C. The victim was medically examined. The I.O.
collected the reports of the Medical Officer. Thereafter, on being satisfied
with the evidence so collected, the I.O. has submitted the charge-sheet
against the appellant.
5. The learned Special Judge taking cognizance of the offence
had framed charges against the appellant under Section 8 of the POCSO
Act 2012, and under Sections 341 / 376 AB read with Section 511 of IPC.
6. To substantiate the aforesaid charges, the prosecution had
introduced as many as 15(fifteen) witnesses. The prosecution also
introduced relevant documents including medical examination report of
the victim girl. After completion 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, but, he
denied to adduce evidence on his behalf.
7. Having heard the learned counsel appearing for the parties
and after perusal of the records, the learned Special Judge held that the
appellant is guilty of committing the offence punishable under Section 8
of the POCSO Act and convicted and sentenced the appellant as afore-
stated.
8. Feeling aggrieved, and dissatisfied with the aforesaid
conviction and sentence, the appellant has preferred the instant appeal
before this court.
9. Mr. Nath, learned counsel appearing for the appellant has
submitted that out of enmity the appellant has been implicated with the
instant case. In support of his submission, Mr. Nath, learned counsel has
drawn my attention to the deposition of PW-10, Gita Sabdakar, who
during her evidence has stated that "it is a fact that there is a dispute
between the accused and Ratan Sabdakar and Hari Sabdakar in
connection with a ring-well nearby their house".
10. I have taken note of this part of evidence as let in by PW-
10. On further perusal of the deposition of PW-10, it comes to light that,
PW-10 has specifically stated that "I do not have any dispute with
complainant Ratan Shabdarkar and we reside happily with each other".
PW-10, has further stated that "It is not true that I do not bring out the
victim under the bed of Setu Ghosh".
11. Mr. Nath, learned counsel has also submitted that from the
sketch map it reveals that the house of the appellant is far away from the
house of the victim girl. Mr. Nath, learned counsel has further submitted
that the medical report does not support the case of the prosecution that
the victim girl was sexually assaulted, as defined under Section 7 of the
POCSO Act. To support his submission that the appellant is an innocent,
Mr. Nath, learned counsel has submitted that the appellant at the time of
commission of alleged offence was attaining the age of 70 years, and he
was residing with his wife in the same house.
12. On the other hand, Mr. S. Debnath, Learned Addl. P.P. has
submitted that the victim girl in her evidence has narrated the entire
incident. In her evidence, the victim girl who deposed as PW-2 has
wholly corroborated the statements she made before the Magistrate while
recording her statement under Section 164 of the Cr.P.C. Mr. Debnath,
learned Addl. P.P. has further submitted that PW-10 has never stated that
the parents of the victim girl had any enmity with the appellant. PW-10
has only stated that there was a dispute between the accused and Ratan
Sabdakar and Hari Sabdakar in connection with a ring well nearby their
house. Mr. Debnath, learned additional PP has further submitted that only
on the basis of this isolated statement not being corroborated by other
testimonies, the judgment and order of conviction passed by the learned
Special Judge may not call for interference.
13. I have considered the submissions of the learned counsel
appearing for the parties. I have carefully scrutinized the evidence let in
by the prosecution witnesses. At the outset, I have perused the evidence
of PW-2, the victim girl. From her evidence, it is seen that she has
categorically stated that she was called by her "Jethu", the appellant
herein and she went there thinking that he will give her some biscuits to
eat, but, when she entered into the room, the appellant had closed the
door and windows and opened her panty and also took off the gamcha
(wearing apparel) worn by the appellant. Thereafter, the appellant sat
over her and touched her hands. She further deposed that after sometime,
when everyone started calling her, the accused made her to go under the
bed and opened the door. Thereafter, she deposed that she was brought
outside the bed by her "Jethi", namely, Mira (PW-1) when she divulged
what the appellant had done with her. Deposing further she stated that she
was taken to hospital and also to the court. She identified her statements
recorded under Section 164(5) of the Cr.P.C. Being confronted with
cross-examination, no material has come out to discredit her evidence. It
is found that the victim girl has mentioned the name of "Mira" who took
her off, which leads this court to peruse the evidence of said Smt. Mira
Sabdakar, who deposed as PW-11.
14. On perusal of the deposititon of PW-11, it comes to light
that the said witness has corroborated the statements of the victim girl.
Furthermore, PW-11 has categorically stated that the appellant was
forced to open the door of the room and after entering into the room she
found the victim girl under the bed of the appellant, and she along with
others also saw that her panty was opened.
15. PW-1, the father-complainant as well as PW-12, the
mother of the victim girl also have deposed that after their arrival, the
victim girl had narrated them the entire incident as to how she was
sexually assaulted by the appellant.
16. I have gone through the statement of the victim girl
recorded under Section 164(5) of Cr.P.C wherefrom it becomes evident
that the victim girl has wholly corroborated the statements, what she
stated in her examination under Section 164(5) Cr.P.C. during her
deposition before the court in course of trial as to how she was sexually
assaulted by the appellant.
17. To deal with the submission of the learned counsel that the
medical report does not support the fact of injury as allegedly suffered by
the victim girl, it is settled proposition of law that injury is not a sine quo
non to establish the offence as defined under Section 7 of the POCSO
Act. Section 29 of the POCSO Act clearly contemplates the initial
presumption in favour of the guilt of the accused and the burden lies upon
the accused to remove such presumption.
18. In the instant case, on overall consideration of the evidence
on record, the offence under Section 8 of the POCSO Act has been
proved beyond reasonable doubt and the appellant has failed to discharge
his burden to disprove the case of the prosecution. Accordingly, the
instant appeal stands dismissed being devoid of any merit.
16. It is informed at the Bar that the appellant is on bail. As
such, the appellant-Setu Ghosh is directed to surrender before the court of
learned Special Judge, Unokoti Judicial District, Kailashahar within a
period of 3(three) weeks from today to serve the remaining period of
sentence. It is made clear that if the appellant-Setu Ghosh fails to
surrender before the court, then, the learned Special Judge shall proceed
in accordance with law to ensure the appellant Setu Ghosh to serve the
remaining period of sentence as ordered by learned trial Judge.
JUDGE
Rohit
