Sri Durjyo Karmakar @ Durju ... vs The State Of Tripura
2022 Latest Caselaw 891 Tri

                                  Page 1 of 9

                        HIGH COURT OF TRIPURA
                           A_G_A_R_T_A_L_A
                           Crl.A(J). No. 04 of 2021

1.     Sri Durjyo Karmakar @ Durju Karmakar @ Durja Karmakar, son of
       late Manik Karmakar of village- Birajanagar (Gangacherra),
       Satsamga, P.S. Kadamtala, District: North Tripura.
                                                          .....Appellant

                               -V E R S U S-

1.     The State of Tripura.
                                           ..... Respondents.

B_E_F_O_R_E HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE ARINDAM LODH

For Appellant(s) : Mr. R. G. Chakraborty, Advocate.

For Respondent(s)           :     Mr. S. Debnath, Addl. P.P.
Date of hearing and delivery of
judgment and order          :     28.09.2022
Whether fit for reporting :       NO

                        JUDGMENT & ORDER [ORAL]
[T. Amarnath Goud, J]

Heard Mr. R. G. Chakraborty, learned counsel appearing for the convict-appellant. Also heard Mr. Sumit Debnath, learned Addl. Public Prosecutor, appearing for the respondent-State.

[2] This criminal appeal has been filed under Section-374 of the Code of Criminal Procedure is directed against the judgment and order of conviction and sentence dated 25.02.2019 passed by the learned Special Judge, Dharmanagar, North Tripura Judicial District in connection with case No.POCSO 05 of 2017, whereby and whereunder, the appellant has been convicted under Sections-447/376(2) of IPC and thereby sentenced him to suffer RI for 3(three) months under Section-447 of IPC and further sentenced to suffer RI for 10(ten) years for the offence punishable under Section-376(2) of IPC and in default, pay fine of Rs.10,000/- with default stipulation. Both the sentences shall run concurrently.

[3] The case of the prosecution, in a nutshell, is that on 26.09.2016, one Kamal Ganju, the complainant-father of the victim has appeared at Kadamtla PS and lodged one written ejahar with the O/C PS to the effect that he has only a daughter namely, 'X' (name withheld) who was aged about 15 years old. He leaving his daughter at home for work here and there. His daughter used to address Durjyo Karmakar @ Durju Karmakar, the convict-appellant herein as uncle but, he for last one month did not use to visit their house. He having found his daughter's health deteriorating, some neighbours inquired the matter from his daughter and his daughter, the victim girl uttered them that the convict- appellant in absence of her father, the complainant herein, used to visit their house and continuously raped her for last 9 to 10 months with assurance to marry her and the appellant asked her to keep the matter concealed otherwise he would assault her physically, so she did not disclose the matter to anyone. Subsequently, after medical examination the victim girl was found 8 months pregnant.

[4] On the basis of the aforesaid written complaint dated 26.09.2016, police case bearing No.2016 KDL 049 under Sections- 376(2)(i)/447 of IPC and under Section-4 of the POCSO Act was registered against the appellant and the case was endorsed to SI of police for investigation. On conclusion of the investigation, the IO having found prima facie case against the FIR named accused appellant for commission of offence under Sections-376(2)(i)/447 of IPC and under Section-4 of the POCSO Act.

[5] To substantiate the charge, the prosecution has adduced as many as 13(thirteen) witnesses. On the closure of prosecution evidence, the appellant was examined under Section-313 of Cr. P.C. for having his response in respect of the incriminating materials those surfaced in the evidence as adduced by the prosecution, to which he strongly denied the

incriminating materials brought against him by the prosecution and claimed to be tried.

[6] After hearing the arguments made by both sides and on perusal of the material evidence on record, the learned Court below delivered the judgment and order conviction and sentence dated 25.02.2019 against the accused-person. For the purpose of reference, the operative portion of the impugned judgment and order of conviction may be reproduced hereinbelow:

"In the result, I hereby convict the accused Sri Durjyo Karmakar @ Durju Karmakar @ Durja Karmakar for the offence punishable under Sections-447 and 376(2) of the Indian Penal Code and acquitted him of the charge punishable under Section-4 of the POCSO Act, 2012. The accused is taken into the custody."

[7] Being aggrieved by and dissatisfied with the judgment and order of conviction, the present appeal has been preferred by the appellant.

[8] Mr. R. G. Chakraborty, learned counsel appearing for the appellant in support of his has submitted that the findings learned Court below is perverse, illegal, unjustified, unreasonable, arbitrary, unwarranted in law and facts and not tenable in the eye of law. He has submitted that the Court below held the convict-appellant to be guilty of alleged offences on the basis of no evidence inasmuch as the evidence on record does not constitute the alleged offence and in no case, implicated the convict appellant in the commission of alleged offence.

[9] The Court below ought to have held that the presence of the accused appellant at the place of occurrence and participation of the appellant in the commission of offence are absolutely doubtful and on the basis of such evidence, the appellant could not be legally convicted. On the improved versions of all the PWs illegally and on the basis of such

improved versions, convicted and sentenced the appellant only on surmise and conjecture.

[10] He has contended that PW-7 i.e. the victim girl at or during the period of occurrence was not child as defined under Section-2(d) of POCSO Act but, she was aged about more than 18 years and thus, she was not child. In support of his averments Mr. Chakraborty, learned counsel has relied and referred the age determination report Exbt.24 and the evidence of PW-13 who in his evidence stated that his opinion is not final so he referred for orthopedic surgeon for ossification test for specific age.

[11] Mr. Chakraborty, learned counsel has further submitted that the birth certificate Exbt.4 of PW-7 cannot be accepted as correct inasmuch as, it was shown issued on 23.06.2004 but, the date of registration was shown on 24.06.2004 and further the IO did not verity its authentication. The victim girl attained the majority or at the verge of attaining majority, so the victim was capable of giving consent for sexual intercourse. But the learned Court below has failed to appreciate the same.

[12] He has submitted that the DNA test, Exbt.26 cannot be considered and accepted in the case for determining as to whether the accused was the biological father of the newly born child of the victim girl as the expert of SFSL, who examined and prepared the report has not been examined. Relying upon the improved versions of the prosecution witnesses, convicting the accused-person is completely a failure of a court or judicial system to attain the ends of justice, especially one which results in the conviction of an innocent person.

[13] In reply to the submissions made by the counsel for the appellant, Mr. S. Debnath, learned Addl. P.P. appearing for the respondent-State has submitted that from the medical records and the

birth certificate of the victim girl, it has clearly been established that the victim girl was less than 18 years of age as on the date and during the period of occurrence. The evidence of PW-7, the victim girl and the DNA report, Exbt.26 clearly established that the accused had sexual intercourse with the victim girl forcibly and the presumption under Section-29 of the POCSO Act can very much raised against the accused-appellant and since the said presumption has not been rebutted by the accused, so, the accused shall be convicted or he cannot avoid such conviction.

[14] He has further contended that as per Section-30 of the POCSO Act, the Court should also presume the culpable mental state of the accused but, the accused has to rebut the said presumption as required in Section-30(1) of the POCSO Act. He has averred that the convict- appellant had culpable mental state to have sexual intercourse with the victim girl and with that culpable mental state, he visited the house of the victim girl in the morning and evening on many occasions when the father, the PW-6 of the victim girl remain absent and had sexual intercourse with her giving threat with dire consequence if disclosed the matter to her father.

[15] Before we proceed to deal with the merits of the case and decide the points taken up, it would be apposite to have a deep look at the material evidence of certain relevant prosecution witnesses for better appreciation of the rival contentions and to decide the dispute involved in the case.

[16] Kamal Ganju, PW-6 who is the father of the victim girl in his evidence has deposed that his wife already expired and he and his only daughter, the victim girl used to reside in his family and being day labour he used to leave home daily for work keeping his daughter lone. About one year back his daughter was about 14 years old in age and she was a girl of quite immature in mental development and he being

informed by the local people came to learnt that his daughter was carrying with pregnancy, so, he arranged for medical examination of her and also asked his daughter about her state of pregnancy and in reply his daughter narrated to him that Durjya uncle enjoyed her sexually telling her nothing would happen and as such he enjoyed her sexually regularly. He also stated that the appellant used to tell that he considered him as his elder brother and the victim girl is his daughter and telling so he used to visit his house regularly.

[17] He has further stated that when the pregnancy of his daughter was determined medically the appellant refused to take his daughter as wife and then he lodged FIR with Kadamtala PS and during investigation of the case, police arranged medical examination of her daughter, got recorded her statement under Section-164, seized birth certificate of her daughter. Her date of birth was 21.05.2002 and date of issuing birth certificate was 24.05.2002. PW-6 further stated that his daughter studied up to class-V in Birajnagar School and at subsequent stage his daughter gave birth to a child whose age is 1(one) year by now.

[18] In cross examination, PW-6 clarified that the house of Samir Das, Dilip Das and Dipak Das situated nearby his house and sometimes neighboring people used to visit his house after taking liquor.

[19] PW-7, the victim girl in her evidence has deposed that the appellant herein is the father of her child. She also deposed that about more than one and half year back Durjya whom she used to address as uncle used to visit her in their house sometimes in the morning and sometimes in evening in the absence of her father and forcibly used to enjoy sex with her after giving threat and asked her not to disclose the matter to her father. She also stated that Durjya sometimes cohabited in a jungle. She again stated that since the appellant threatened her with dire consequences, she did not disclose the matter to her father.

[20] She further narrated that on being asked she narrated the incident in detail to her father and then her father lodged FIR. She yet went on saying that she studied up to class VII at Bragendranagar School and during investigation, police arranged her medical examination, arranged her statement being recorded by the Magistrate, her bold and wearing apparels were seized. She further stated that her son was born at Dharmanagar Hospital and latter police also seized her and her child's blood and for examination.

[21] PW-8, Projesh Das has deposed that being produced by Kamal Ganju police seized birth certificate in his presence.

[22] PW-10, Dr. Nityahari Bhowmik, who has deposed that he collected the sample of blood in gauze cloth of accused Durjya Karmakar with his consent and also issue authentication certificate Exbt.20 of collection of blood sample and the blood sample was seized by the IO of the case.

[23] PW-12, Bibhas Ch. Das who is the investigating officer of Kadamtala P.S and he deposed that being endorsed with the case he investigated the case and during investigation he arranged medical examination of the victim girl, arranged her examination by Magistrate, visited the place occurrence and prepared the hand sketch map which is marked as Exbt.23. Thereafter, he arrested the accused-person and arranged his medical examination, seized sample of blood, saliva, seminal of the accused preparing seizure list Exbt.1/c, arranged for ossification test of the victim for determining her age.

[24] In cross-examination, PW-12 clarified that he arranged medical examination of the victim before her examination under Section- 161 and birth certificate of the victim was issued on 23.05.202 but it was counter signed on 23.06.2004 and also stated that Dr. Sandip Deb did not issue authentication certificate of blood sample of the baby. He further

clarified that he did not examine the police constable who carried the blood sample of SFSL.

[25] PW-13, Dr. Biswajit Paul who conducted ossification test of the victim girl and deposed that he found all the permanent teeth including third molar of the victim girl were erupted and he opined that she would be above 16 years in age. However, her upper age may be more than 18 years. In his cross-examination, he clarified that dental surgeon does not give clear result, so, he suggested for ossification test.

[26] In view of the above analysis of facts and circumstances coupled with the settled legal position, we hold that the judgment and order of conviction as returned by learned Court below cannot sustain and it has to be interfered with for administration of justice. The learned Court below convicted the accused-person under Sections-447/376(2) of IPC and acquitted from the charge of Section-4 of the POCSO Act.

[27] It is seen from the evidence on record that the accused- person is known to the victim girl and the complainant, the father of the victim and she used to call him 'kaku'. They were being the neighbours and also known to each other. So, Section-447 of IPC does not attract. Insofar as Section-376(2) is concerned, the learned Court below has decided that the age has not been proved and in support of the complaint that the victim girl is a minor, the same has not been proved. Thus, this Court draws the conclusion that when the age is not proved then, it is automatically be treated as consenting intercourse and not rape. Thus, in the absence of not proving the age of the victim girl as decided by the Court below, Section-376(2) does not apply. Insofar as the DNA report is concerned to say that the child was born to the accused-person, the same has not been proved by examining the concerned doctor on the DNA report.

[28] There is a contradiction on the part of the evidence of father of the victim girl. At one point of time, in their evidence deposed that the date of birth year is not known and the father. In the absence of not filing any proof of age, in the present scenario the allegations made by the father saying that the age of his daughter as 14 years, cannot be taken as a gospel truth. The medical evidence with regard to ascertaining the age of the victim girl is indicated as more than 18 years.

[29] The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case of the prosecution. It is settled proposition of law that the charge framed against the accused person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected from a normal person. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-appellant.

[30] In the backdrop of above analysis, we are of the view that the prosecution has failed to establish their projected case and consequently the instant appeal is allowed. Accordingly, the order of conviction and sentence dated 25.02.2019 passed by the learned Special Judge, Dharmanagar, North Tripura Judicial District in POCSO 05 of 2017 is set aside. The appellant shall be released forthwith, if not wanted in connection with any other case.

[31] With the above observations and direction, the instant appeal stands allowed and disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs.

          JUDGE                                                          JUDGE

A.Ghosh