Tripura High Court

Shri Nakul Paul vs The State Of Tripura on 19 September, 2022

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                    HIGH COURT OF TRIPURA
                          AGARTALA
                      CRL.A NO.5 OF 2021

Shri Nakul Paul,
Son of Sri Arabinda Paul,
Profession-Day labor, resident of Pratapgarh,
Near Manashabari, P.O.- Agartala & P.S. East Agartala,
District-West Tripura.


                                              ----- Appellant(s)

                                Versus

The State of Tripura.
                                              ----- Respondent(s)

For the Appellant(s) : Mr. S. Lodh, Advocate.

For the Respondent(s) : Mr. S. Ghosh, Addl. P.P.

   Date of hearing and delivery of
   Judgment & Order              : 19.09.2022.

   Whether fit for reporting     : NO.


                       BEFORE
        HON'BLE MR. JUSTICE T. AMARNATH GOUD

            J U D G M E N T & O R D E R(ORAL)

This present criminal appeal has been filed under

Section 447 and 354 of the Code of Criminal Procedure, 1973

against the impugned judgment of conviction and sentence

dated 15.02.2021 passed by the learned Special Judge (POCSO

Act), Agartala, West Tripura in Case No. Special(POCSO) 01 of

2018, whereby the learned Special Judge(POCSO), Agartala,

West Tripura has convicted the appellant for committing

offence, punishable under Section 447 and 354 of IPC and

Section 08 of the Protection of Children from Sexual Offences

Act, 2012, and sentenced him to suffer 3 months S.I. for

committing offence punishable under Section 447 of I.P.C and

also sentenced him to suffer 3 years Rigorous Imprisonment

and also to pay a fine of Rs.15,000/- for committing offence

punishable under Section 354 of IPC, with default stipulation.

The appellant herein is also sentenced to suffer Rigorous

imprisonment for 3 years and to pay a fine of Rs.15,000/- for

committing offence punishable under Section 8 of POCSO Act

with default stipulation.

2. The facts of the case in brief leading to this

present criminal appeal is that on 12.12.2017, in the afternoon

at about 3.00 P.M., taking advantage of the absence of others,

the accused-appellant herein trespassed into the house of the

informant at Pratapgrah and touched the body of the victim

and outraged her modesty. It is also alleged that the accused-

appellant herein prohibited the victim from stating anybody

about the incident, but on 16.12.2017, after knowing about the

same from the victim-daughter, the informant lodged the

complaint before the police.

3. Based on the written complaint of the informant

(father of the victim) a case was registered at East Agartala

Women P.S. vide No.2017/WEA/091 dated 16.12.2017 under

Section 448/354A(2)(3) of the IPC read with Section 8 of the

POCSO Act, against the accused-Nakul Paul. In course of the

investigation, the I.O. visited the place of occurrence and

recorded the statement of the material witnesses under Section

161 of Cr.P.C. The victim girl was forwarded before the

Magistrate for the recording of her statement under Section

164(4) of Cr.P.C. At the conclusion of the investigation, the

Police submitted the charge sheet having found prima-facie

materials against the accused under Sections-448/354(2)(3) of

the IPC read with Section 8 of the POCSO Act.

4. On receipt of the police report, learned Special

Judge (POCSO), Agartala framed the charge against the

accused-appellant herein under Section 447 & 354 of IPC and

alternatively under Section 8 of POCSO Act.

5. The accused-appellant after hearing all the

matters and contents of the charge, pleaded not guilty and

claimed to be tried. Accordingly, Trial was conducted, and to

prove the case, prosecution side examined as many as 5

witnesses, namely:-

1) P.W.1, Smt. Rita Saha(Baishnab), mother of the victim.

2). P.W.-2, victim(name withheld).

3) P.W.-3, Shri Bimal Baishnab, informant and father of the victim.

4) P.W.-4, Shri Suman Baishnab, brother of the victim.

5) P.W.-5, Smti. Jamuna Roy, I.O. of the case.

6. After hearing the parties learned Special

Judge(POCSO), West Tripura, Agartala, convicted the appellant

as stated above.

7. Being aggrieved and dissatisfied with the

impugned judgment and conviction of the sentence dated

15.02.2021, the appellant has preferred this instant criminal

appeal.

8. Heard Mr. S. Lodh, learned counsel appearing for

the appellant as well as Mr. S. Ghosh, learned Addl. P.P.

appearing for the State-respondent.

9. Mr. S. Lodh, learned counsel appearing for the

accused-appellant herein submitted that contradictory

statements were given by the prosecution witnesses regarding

the place of occurrence of the alleged incident. From the

deposition of P.W.-1, it is revealed that just after the alleged

incident, the victim narrated the incident to the landlady, Geeta

Roy, but the prosecution did not produce her. Further 2(two)

eyewitnesses of the alleged incident who were the sister and

friend of the victim were also not produced as a witness by the

prosecution. Withholding their witnesses creates serious doubt

in the story of the prosecution. P.W.-3, the father of the victim

stated that he did not take any money from the accused-

appellant herein but the mother of the victim i.e. P.W.-1 stated

that they used to take money from the accused-appellant.

10. Further to substantiate his argument, learned counsel

referred to Para-26, 27 and 28 of the Apex Court Judgment

passed in Tomaso Bruno and anr. Vs. State of Uttar

Pradesh reported in (2015) 7 SCC 178 dated 01.20.2015

which is reproduced as under:-

"26. The trial court in its judgment held that non- collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.

27. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. Under Section 114 of the Evidence

Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.

28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."

11. He further cited Para-28 of the Division Bench

Judgment of this Court passed in Crl.A(J) No.34 of 2019

titled as Sri Lalmalsom Kaipeng Vs. The State of Tripura

dated 01.04.2021 which is reproduced herein-under:-

"28. To say more comprehensively, the presumption to be drawn under Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts. Prosecution has to establish a prima facie case beyond reasonable doubt. Only when the fundamental facts are established by the prosecution, the accused will be under obligation to rebut the presumption that arise, by adducing evidence with standard of proof of pre-ponderance of probability. The insistence on establishment of fundamental facts by prosecution acts as a safety guard against misapplication of statutory presumption. Foundational facts in POCSO Act include:-

(i) the prove that the victim is a child;

(ii) that alleged incident has taken place;

(iii) that the accused has committed the offence; and

(iv) whenever physical injury is caused, to establish it with supporting medical evidence.

Stating thus, learned counsel appearing for the

appellant urged this Court to allow this present appeal and set

aside the judgment and order of conviction dated 15.02.2021

passed by the Court below.

12. Mr. S. Ghosh, learned Addl. P.P. appearing for

the State respondent submitted that the place of the

occurrence of the alleged crime is consistent in the statement

of the victim girl as well as the mother of the victim i.e. P.W.-1

i.e at the backyard of their house. The fact that the accused

person herein has touched the breasts of the victim girl is

corroborated by the statement of both the victim girl and the

mother of the victim (P.W.-1) which is altogether consistent

and is not contradictory anywhere. According to the birth

certificate of the victim, the date of birth of the victim is

09.02.2006 so at the time of the alleged incident, the victim

was a minor and so there is no issue of consent.

13. On the issue of presumption, learned Addl. P.P

has referred to Section 29 of the POCSO Act which is

reproduced herein-below:-

"29. Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5,

7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

14. Heard both sides and perused the evidence on record.

15. P.W. 1, the mother of the victim stated that they used

to stay in the rented house of one Smt. Gita Roy at Manasha

Bari area at Pratapgarh. During that period on 12.12.2017 at

about 3,00 P.M, while her victim daughter was playing with her

younger sister and her friend in the courtyard, their neighbour,

Nakul Paul came to the spot in search of his hen and asked the

victim to see if it is present on the backyard of their house.

Her victim daughter went to their backyard and the accused-

appellant herein touched her breasts and also asked her to

come with him stating that he would provide her chocolate. The

witness stated that the accused lifted her napkin upwards,

which he was wearing. She revealed that at the relevant point

in time, she was not at home and that she came to learn about

the entire incident from her victim daughter on the next

morning, where-after her daughter informed the matter to

their landlady.

In her cross-examination, P.W.-1 admitted to

have not stated to police that on 12.12.2017, her victim

daughter was not playing in their courtyard with her younger

sister and friend and that the accused appeared therein in

search of his hen and then he allured the victim to give

chocolates if she accompanies him. The witness also admitted

to have not stated before the police that the victim narrated

about the incident to their landlady. Subsequently, she denied

the suggestions that the accused did not enter their house on

the alleged day or that he did ask the victim to search for his

hen in the backyard. She also denied the suggestion that the

accused did not follow the victim to their backyard or that he

did not touch her breasts nor asked to accompany him to get

chocolates. P.W.1 also denied the suggestion that the

informant borrowed money from the accused and brought the

false case to avoid refund of the amount outstanding.

16. P.W.-2 the victim was tested by a series of

questions put to her and on being satisfied with her replies, her

statement was recorded on oath. The victim stated that on

12.12.2017 at about 3.00 P.M. when she was playing

badminton with her younger sister, the accused-appellant

herein came in front of the gate and asked her to search for his

hen in their backyard. Victim, P.W.2 stated to have gone to her

backyard, when the accused followed her and touched her back

and neck. From this untoward incident, the victim stated to

have started returning back to their courtyard, when the

accused herein again caught her hand and pressed her breast

and further asked her whether she would like to have

chocolates worth more than Rs.500/- or not. She denied that

proposal and returned the money back to her home,

whereafter the accused left the place.

In her cross-examination, the victim admitted the fact

that the alleged incident took place on 13.12.2017. On

questions being put forward, the victim admitted to have not

stated before the police that on 12.12.2017 at about 3.00 P.M.

she was playing badminton with her sister and friend, when the

accused came in front of their gate or that the accused asked

her whether she would take chocolate worth more than

Rs.500/-, which she refused. She further denied the suggestion

that on 12.12.2017 or 13.12.2017, she was not in the house of

the parents at Pratapgarh or that the accused did not arrive

there in search of his hen. The victim also denied the

suggestion that she did not go to their backyard or that the

accused did not touch her body or her breasts there.

17. P.W.-3, the informant-father of the victim

deposed that on 12.12.2017 at about 3.00 P.M., the accused

came to their house in search of his hen and asked the victim

to help him. He stated that as the victim went to search the

same, the accused touched different parts of her body including

her breasts for which, he lodged a complaint before the police.

In the cross-examination, the informant denied

the suggestion that on the relevant day, the accused did not

ask his victim-daughter to help him search his hen and that he

did not touch several parts of her body including her breasts.

The informant also denied the suggestion that no such incident

took place on 12.12.2017 or that he borrowed the money from

the accused-appellant herein and lodged the false case to avoid

refund of the same.

18. P.W.-4 the brother of the victim stated that the

accused-appellant herein was their neighbour when they used

to stay in their rented house at Town Pratapgarh. He stated

that on 12.12.2017 after returning back home at about 7.00

P.M. he heard from his victim sister that the accused person

herein touched her body and misbehaved with her on that day

at about 3.00 P.M. P.W-4 has not been subjected to any cross-

examination by the defence.

19. In the light of the evidence of the prosecution

witnesses No.1, 2, 3 & 4 it is proved that the accused-appellant

herein is the neighbour and known to the family members of

the victim girl. As per the evidence of the father and mother of

the victim girl i.e. P.W.1 and P.W.2, there was financial

transaction between the accused person and the father of the

victim girl which has been accepted by P.W.-1, the mother of

the victim. The place of occurrence as per the evidence of

P.W.2, the victim girl is behind the house but not inside the

house. In light of the evidence discussed above, it cannot be

said that the accused person had trespassed into the house of

the complainant and the victim. The accused person is not a

stranger to the family members of the victim girl herein. Thus,

the question of attracting Section 447 of the IPC in this instant

case does not arise. Accordingly, the conviction of the

accused-appellant herein under Section 447 of IPC is set aside.

20. In so far as the conviction under Section 8 of the

POCSO Act is concerned, it attracts sexual assault and the

definition of sexual assault has been explained in Section 7 and

8 of the POCSO Act which is crucial for consideration with

regard to the touching of the breasts of the victim-girl by the

accused herein with an intention of sexual assault. The same is

reproduced herein-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.

8. Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."

21. So here in terms of the above-mentioned

Sections, the accused person herein with the intention to have

a physical relationship with the victim-girl had touched her

breasts has not been made out. In view of the same, the

presumption under Section 29 of the POCSO Act is not

applicable to offence under Section 8 of the POCSO Act

Moreover, this Court gives negative finding. Thus, the

conviction of the accused person under Section 8 of the POCSO

Act is also set aside.

22. In so far as conviction under Section 354 of the

IPC is concerned, the victim girl has categorically stated that

the accused-appellant herein has touched her breast. The

accused person in his examination under Section 313 of Cr.P.C.

stated that he is falsely implicated in this case but has not

stated that there was a monitory transaction between him and

the father of the victim-girl and for that reason, the father of

the victim girl to evade the repayment have foisted the case

against him. The accused has not explained categorically in

Section 313 examination to the Court about his non-

involvement except denial of the charges. This Court believes

that the accused person had touched the breasts of the victim