Tripura High Court
Sri Arjun Debnath vs The State Of Tripura on 6 December, 2023
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
Crl.A.(J) 20 of 2022
Sri Arjun Debnath,
S/o- Sri Sriranjan Debnath,
Resident of West Charakbai (Uttar Para)
PS: Baikhora, Dist: South Tripura
---Appellant(s)
Versus
The State of Tripura
---Respondent(s)
For Petitioner(s) : Mr. Subrata Sarkar, Sr. Advocate.
Ms. N. Debbarma, Advocate.
For Respondent(s) : Mr. Raju Datta, PP.
Date of hearing : 21.11.2023
Date of pronouncement : 06.12.2023
Whether fit for reporting : Yes/No
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
(T. Amarnath Goud, J)
Heard Mr. Subrata Sarkar, learned senior counsel assisted
by Ms. N. Debbarma, learned counsel appearing for the appellant.
Also heard Mr. Raju Datta, learned PP appearing for the state-
respondent.
[2] This is an appeal under Section 374 of the Code of
Criminal Procedure, 1973 against the judgment and order of
conviction and sentence dated 21.03.2022 passed by the Ld. Special
Judge, South Tripura in connection with Case No.Special 23 (POCSO)
of 2021 convicting the appellant to suffer rigorous imprisonment for
20 years and to pay a fine of Rs.15,000/-(fifteen thousand) for the
offence punishable under Sec. 6 of POCSO Act, in default, to suffer RI
for two months.
[3] The prosecution story as revealed from the charge-sheet
& judgment in short as alleged is that for the last three years the
accused-appellant used to commit rape upon the victim daughter of
the informant alluring money as a result of which the victim, daughter
of the informant, became pregnant for three months. On 12.06.2021
at about 6.30 pm suddenly the victim daughter of the informant
feeling abdominal pain and her bleeding was started. The informant
and her husband shifted their victim daughter at Baikhora PHC. ON
arrival at Baikhora PHC the attending medical officer asked the victim
girl in presence of her parents about her pregnancy, then the victim
girl disclosed the fact before the medical officer in presence of her
parents. The victim also disclosed that she has taken medicine which
was given by accused Arjun Debnath and after consumption of the
medicine miscarriage was happened. Thereafter, the informant lodged
the case to Baikhora PS.
[4] On this Baikhora PS Case No.2021/BKR/015 under
Sec.376(2)(i) and 313 of IPC and section 6 of POCSO Act was
registered against the accused person and the case was endorsed to
Smt. Ruma Noatia WSI of police. The case was investigated and on
completion of investigation I/O WSI Ruma Noatia filed charge sheet
against accused Sri Arjun Debnath for commission of offence
punishable under Section 376(2)(i) and 313 of IPC and section 6 of
POCSO Act.
[5] During trial, the prosecution to establish the charge had
adduced as many as 10 witnesses. After closure of recording
evidences, the appellant was examined under Section 313 Cr.P.C.
wherein he denied all the allegations leveled against him by the
prosecution witnesses. After hearing arguments and on examining the
evidences and materials on record, the learned Special Judge had
convicted and sentenced the appellant for committing offence, as
aforestated. Hence, this appeal before this court.
[6] For appreciating the rival submission of the counsel for
the parties, it would be apposite to revisit the evidence as recorded in
the trial.
[7] PW-1, Smti Shikha Nath deposed that she took her
daughter to Baikhora hospital three months back for her treatment as
her daughter's menstruation was not coming for last three months. At
the time of examination of her daughter by doctor, doctor came to
know that her daughter is pregnant. Her daughter told the doctor in
her presence that she was raped by Arjun Debnath and he arranged
some medicines for her abortion. She took the pills and thereafter,
her condition became deteriorated. After having tablets, her bleeding
was started. Later on, her daughter was referred by the doctor of
Baikhora PS to Santirbazar District Hospital. Doctor of Santirbazar
District Hospital examined her daughter and her daughter was
hospitalized for five days. Her daughter was given treatment by the
doctor as per requirement and her pregnancy was cleared by the
doctor.
[8] PW-2, the victim girl deposed that three years back one
day in the evening at 7/7.30 pm she noticed light in the house of her
uncle, Arjun Debnath. She went there to meet her aunty, the wife of
Arjun Debnath. At that time, her aunty was not in the house and he
forcibly raped her and from that date, he started to rape her
continuously. He also threatened her that if she would disclose this
fact of rape to anyone, he would kill her. Because of this fear, she
could not say anything to her parents and accused continuously
committed rape upon her. In the month of March, April and May, her
menstruation period did not come and she informed this to her uncle,
Arjun Debnath. Her uncle compelled her for pregnancy test. On
04.06.21 he brought one pregnancy test kit. He also introduced her
how to use this kit. She informed her uncle that she was pregnant at
that time. On 06.06.21 Arjun Debnath arranged tablets for her
abortion and asked her to use this tablet. He provided her five tablets.
Witness identified Exhibit MO(1)/PW-1. She took some tablets and
thereafter, bleeding started after having two tablets. She was also
feeling pain in her abdomen. She was in fear because she did not
share this information to her mother. Immediately her mother and
father took her to Baikhora PHC for her treatment on 12.06.2021.
Doctor after check up told that she is pregnant. Thereafter, she
disclosed all the facts and act of Arjun Debnath to the doctor and at
that time, her mother was also there. Because of her health condition
doctor referred her to Santirbazar District hospital. In Santirbazar
District hospital, her abortion was done by doctor. She was admitted
in the hospital for three days.
[9] PW-3, Sanjib Debnath deposed that victim is his daughter
and presently she is aged about 15 years. He is a rickshaw puller and
goes for work daily. He came to know first time about the offence
when he along with his wife took his daughter to Baikhora hospital
and when the bleeding of his daughter started. In Baikhora hospital,
Dr. Johyshree Reang referred his daughter to Santirbazar District
Hospital. On query of the doctor at Baikhora hospital, his daughter
told about the commission of the offence by accused Arjun Debnath to
her. Accused kept his daughter under threat and for that she did not
share this information to them earlier. When his daughter told the
story of the offence before the doctor he along with his wife were also
present. His daughter told the doctor that her uncle committed rape
upon her and her pregnancy is the result of rape committed by her
uncle, Arjun Debnath. He went to Baikhora PS for informing the
incident. His wife lodged FIR in the PS.
[10] PW-4, Dr. Arpan Bhattacharjee deposed that on
13.06.2021 he was posted at Medical Officer (Gynecologist) at
Santirbazar District Hospital. On 12.06.2021 at 08.25 pm the patient,
the victim was referred from Baikhora PHC for bleeding of vagina. In
the emergency, he conducted pregnancy test and it was found
positive. Then patient was admitted in gyne ward and required
treatment was given. On 13th June, 2021 in morning during round
duty, he saw that patient bleed profusely. So after taking guardians'
consent, as she was 15 years old, he had conducted D & C of the
patient to save her life. The product of conceptus was fouls smell and
not in a condition to preserve. After D & C, patient was stable. After
the emergency procedure, they sent all routine blood investigation
and USG of lower abdomen. When patient condition became stable,
he had given her discharge on 15.06.2021. He identified his
declaration written by him and signed by him in two sheets.
[11] PW-10, Smt. Ruma Noatia, the investigating officer. She
deposed that on last 14.06.2021 on Sanjib Debnath, father of the
victim verbally gave information to Baikhora PS that her minor
daughter has bleeding problem. He also brought his to Baikhora PHC.
After check up at Baikhora PHC, doctor found that the minor was
three months pregnant. The health condition of the minor was not
very good, so she was immediately referred to Santirbazar hospital.
The information was recorded in the GDE and thereafter, she herself,
inspector Gopal Sukladas and SI Sourav Das went to Santirbazar
hospital. When they went there, she found the minor was also there.
Mother of the minor wanted to lodge FIR. So as per her dictation, SI
Sourav Das wrote the ejahar in the hospital. The recorded complaint
was sent to the PS. She recorded 161 statement of mother of the
victim and minor victim. She returned to the PS. After coming to the
PS, case was handed over to her for investigation as the case was
already registered by the O/C. PW-10 also collected one certificate
from panchayet secretary about the authentication of date of birth of
victim. The appellant convict by the trend of cross examination could
not shatter evidences of the said witnesses. Moreso, the other
witnesses also supported the story of the prosecution.
[12] Mr. S. Sarkar, learned counsel appearing for the accused-
appellant has submitted before this court that there were 3/4 families
living in the same premises of the place of occurrence without any
proper boundary wall, if such incident had occurred for last 3 years
someone might have noticed the same, but no one had notice
anything ever which creates a question of doubt as to the deposition
of the victim and the complainant. Ld. Trial court did not consider this
aspect and as such the impugned judgment and order of conviction
and sentence is liable to be set aside.
[13] It is further submitted by counsel for the appellant that
the victim deposed that whenever her aunty was busy in cooking,
watching TV or in pujaghar the accused used to commit rape upon
her, which creates a question of doubt being in the same house how
the aunt of the victim was not aware of the incident. Moreover, there
were other families living in the premises but nobody hear anything at
the time of the incident which creates a gross doubt in the
prosecution story. Thus, from the version of the victim's deposition, it
is crystal clear that the statement made by the victim before the Ld.
Trial Court was totally false and concocted story implicating the name
of the convicted accused persons but Ld. Trial court below did not
consider this aspect and as such the impugned judgment and order of
conviction and sentence is liable to be set aside. Learned senior
counsel has urged to set-aside the order of conviction and sentence
as passed by the learned trial court.
[14] Mr. Sarkar, learned senior counsel has placed his reliance
on Birad Mal Singhvi vs. Anand Purohit reported in 1988 (Supp)
SCC 604, where the apex court has observed in the following
manner:
"14.We would now consider the evidence produced by the
respondent on the question of age of Hukmi Chand and Suraj
Prakash Joshi. The respondent examined Anantram Sharma
PW 3 and Kailash Chandra Taparia PW5. Anantram sharma PW
3 has been the Principal of New Government Higher Secondary
School, Jodhpur since 1984. On the basis of the scholar's
register he stated before the High Court that Hukmi Chand
joined school on 24.6. 1972 in 9th class and his date of birth
as mentioned in scholar's register was 13.6.1956. He made
this statement on the basis of the entries contained in the
scholar's register Ex. 8. He admitted that entries in the
scholar's register are made on the basis of the entries
contained in the admission form. He could not produce the
admission form in original or its copy. He stated that Hukmi
Chand was admitted in 9th class on the basis of transfer
certificate issued by the Government Middle School, Palasni
from where he had passed 8th standard. He proved the
signature of Satya Narain Mathur the then Principal who had
issued the copy of the scholar's register Ex. 8. Satya Narain
Mathur was admittedly alive but he was not examined to show
as to on what basis he had mentioned the date of birth of
Hukmi Chand in Ex. 8. The evidence of Anantram Sharma
merely proved that Ex. 8 was a copy of entries in scholar's
register. His testimony does not show as to on what basis the
entry relating to date of birth of Hukmi Chand was made in the
scholar's register. Kailash Chandra Taparia PW 5 was Deputy
Director (Examination) Board of Secondary Education,
Rajasthan, he produced the counter foil of Secondary
Education Certificate of Hukmi Chand Bhandari. a copy of
which has been filed as Ex. 9. He also proved the tabulation
record of the Secondary School Examination 1974, a copy of
which has been filed as Ex. 10. In both these documents
Hukmi Chand's date of birth was recorded as 13.6.1956.
Kailash Chandra Taparia further proved Ex. 11 which is the
copy of the tabulation record of Secondary School Examination
of 1977 relating to SuraJ Prakash Joshi. In that document the
date of birth of Suraj Prakash Joshi was recorded 11.3.1959
Kailash Chandra Taparia stated that date of birth as mentioned
in the counter foil of the certificates and in the tabulation form
Ex. 12 was recorded on the basis of the date of birth
mentioned by the candidate in the examination form. But the
examination form or its copy was not produced before Court.
In substance the statement of the aforesaid two witnesses
merely prove that in the scholar's register as well as in the
Secondary School examination records the date of birth of a
certain Hukmi Chand was mentioned as 13.6.1956 and in the
tabulation record of Secondary School Examination a certain
suraj Prakash Joshi's date of birth was mentioned as
11.3.1959. No evidence was produced by the respondent to
prove that the aforesaid documents related to Hukmi Chand
and Suraj Prakash Joshi who had filed nomination nation
papers. Neither the admission form nor the examination form
on the basis of which the aforesaid entries relating to the date
of birth of Hukmi Chand and Suraj Prakash Joshi were
recorded was produced before the High Court. No doubt, Exs.
8, 9. 10. 11 and 12 are relevant and admissible but these
documents have no evidentiary value for purpose of proof of
date of birth of Hukmi Chand and Suraj Prakash Joshi as the
vital piece of evidence is missing, because no evidence was
placed before the Court to show on whose information the date
of birth of Hukmi Chand and the date of birth of Suraj Prakash
Joshi were recorded in the aforesaid document. As already
stated neither of the parents of the two candidates nor any
other person having special knowledge about their date of
birth was examined by the respondent to prove the date of
birth as mentioned in the aforesaid documents. Parents or
near relations having special knowledge are the best person to
depose about the date of birth of a person. If entry regarding
date of birth in the scholars register is made on the
information given by parents or some one having special
knowledge of the fact, the same would have probative value.
The testimony of Anantram Sharma and Kailash Chandra
Taparia merely prove the documents but the contents of those
documents were not proved. The date of birth mentioned in
the scholar's register has no evidentiary value unless the
person who made the entry or who gave the date of birth is
examined. The entry contained in the admission form or in the
scholar register must be shown to be made on the basis of
information given by the parents or a person having special
knowledge about the date of birth of the person concerned. If
the entry in the scholar's register regarding date of birth is
made in the basis of information given by parents, the entry
would have evidentiary value but if it is given by a stranger or
by someone else who had no special means of knowledge of
the date of birth, such an entry will have no evidentiary value.
Merely because the documents Exs. 8, 9, 1(). 11 and 12 were
proved, it does not mean that the contents of documents were
also proved. Mere proof of the documents Exs. 8, 9, 10, 11
and 12 would not tantamount to proof of all the contents or
the correctness of date of birth stated in the documents. Since
the truth of the fact, namely, the date of birth of HukmiChand
and Suraj Prakash Joshi was in issue, mere proof of the
documents as produced by the aforesaid two witnesses does
not furnish evidence of the truth of the facts or contents of the
documents. The truth or otherwise of the facts in issue,
namely, the date of birth of the two candidates as mentioned
in the documents could be proved by admissible evidence i.e.
by the evidence of those persons who could vouch safe for the
truth of the facts in issue. No evidence of any such kind was
produced by the respondent to prove the truth of the facts.
namely, the date of birth of Hukmi Chand and of Suraj Prakash
Joshi. In the circumstances the dates of birth as mentioned in
the aforesaid documents have no probative value and the
dates of birth as mentioned therein could not be accepted."
[15] Mr. S. Sarkar, learned counsel has also placed his reliance
on another judgment of the apex court in Alamelu And Another vs.
State reported in (2011) 2 SCC 385, where the apex court has
observed in the following manner:
42. Considering the manner in which the facts recorded in a
document may be proved, this Court in the case of Birad Mal
Singhvi Vs. Anand Purohit1, observed as follows:-
"14. ....The date of birth mentioned in the scholars' register
has no evidentiary value unless the person who made the
entry or who gave the date of birth is examined....Merely
because the documents Exs. 8, 9, 10, 11, and 12 were proved,
it does not mean that the contents of documents were also
proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12
would not tantamount to proof of all the contents or the
correctness of date of birth stated in the documents. Since the
truth of the fact, namely, the date of birth of Hukmi Chand and
Suraj Prakash Joshi was in issue, mere proof of the documents
as produced by the aforesaid two witnesses does not furnish
evidence of the truth of the facts or contents of the
documents. The truth or otherwise of the facts in issue,
namely, the date of birth of the two candidates as mentioned
in the documents could be proved by admissible evidence i.e.
by the evidence of those persons who could vouchsafe for the
truth of the facts in issue. No evidence of any such kind was
produced by the respondent to prove the truth of the facts,
namely, the date of birth of Hukmi Chand and of Suraj Prakash
Joshi. In the circumstances the dates of birth as mentioned in
the aforesaid documents have no probative value and the
dates of birth as mentioned therein could not be accepted."
[16] On the other hand, Mr. Raju Datta, learned Public
Prosecutor, appearing for respondent-State, vehemently objected the
submissions advanced by the learned counsel for the appellant
contending that there are enough incriminating materials against the
accused-appellant establishing his involvement in the alleged crime
and the learned Sessions Judge has rightly passed the judgment and
order of sentence. Accordingly, he contends that there is no error in
the impugned judgment passed by the learned trial Court calling for
any interference and prays for dismissal of the present appeal.
[17] To support his contention, learned PP has placed his
reliance on a judgment of the apex court in Lachhmi Narain Singh
(Dead) Through Leal vs. Sarjug Singh (Dead) Through Legal reported
in (2022) 13 SCC 746. Where the apex court has observed in the
following manner:
25. In view of the foregoing discussion, it is clear that plea
regarding mode of proof cannot be permitted to be taken at
the appellate stage for the first time, if not raised before the
trial court at the appropriate stage. This is to avoid prejudice
to the party who produced the certified copy of any original
document without protest by the other side. If such objection
was raised before the trial court, then the party concerned
could have cured the mode of proof by summoning the original
copy of document. But such opportunity may not be available
or possible at a later stage. Therefore, allowing such objection
to be raised during the appellate stage would put the party
(who placed certified copy on record instead of original copy)
in a jeopardy and would seriously prejudice interests of that
party. It will also be inconsistent with the rule of fair play as
propounded by Ashok Bhan. J. in R.V.E. Venkatachala.
[18] Reliance also has been placed on another judgment of the
apex court in State of Madhya Pradesh vs Preetam reported in
(2018) 17 SCC 658, where the apex court has observed in the
following manner:
11. In our considered view, the approach of the trial court was
not correct. In each and every case the prosecution cannot be
expected to examine the person who has admitted a student in
the school. The school registers are the authentic documents
being maintained in the official course, entitled to credence of
much weight unless proved otherwise. In our view, considering
the evidence of Headmaster, Bhaulal (PW8), and the school
certificate produced by him i.e. Ext.P/13-A, age of the victim
has to be taken as 12 years at the time of occurrence.
[19] The deposition of the informant (PW-1), the victim (PW-2)
and her father (PW-3) get strength from the deposition of PW-4 the
medical officer who examined the victim and found her pregnant and
also found that her condition was very critical as such she was
hospitalized. In the finding, PW-4 has specifically mentioned that she
was committed sexual intercourse and after that she was pregnant.
The victim has specifically stated the name of the accused-appellant
Arjun Debnath and this fact is also established by the depositions of
PW-1 and PW-3 that they reside in the same compound where the
accused resides. So there is easy access for the accused to come into
touch with the victim because they reside in the same compound and
the parents for the victim go outside of house for their works. In view
of the close relationship between the accused and the victim, there
was no reason for the minor not to raise any hue and cry. Moreover,
the minor girl was being threatened by the accused-appellant uncle
with dire consequences. The conduct of the accused did not give rise
to any suspicion by any one as the victim and the accused-appellant
were related.
[20] In support of the case of the prosecution to prove the age
of the victim girl as minor Exbt P2 is placed on record. According to
Exbt P2 which is the birth certificate of the victim girl issued on
27.09.2006 by the Addl. District Registrar of Birth and Death, (B.D.O)
Bagafa Block, the date of birth of the victim girl is 16.08.2006.
Another document as Exbt-P-16 has also been placed on record which
is issued by the Panchayet Secretary, West Charakbai G.P Jolaibari,
RD Block, Santirbazar, Tripura (S) on 25.06.2021. As per his version,
the date of birth of the victim girl, PW2 is 16.08.2006. According to
him, the birth certificate as issued by the Addl. District Registrar of
Birth and Death, (B.D.O) Bagafa Block, is genuine. A bare reading of
both the exhibits shows that the victim girl did not attain her majority
when she was raped by the accused-appellant. The counsel for the
appellant has not rebutted the same and no objection has been raised
to the said document .PW-4, Dr.Arpan Bhattacharjee has marked the
medical report of the victim girl as exhibit P8 which states that PV
examination was done to the victim. The victim was bleeding
profusely. The doctor has also done D & C to save the life of the
patient. According to PW-4, the victim was subjected to sexual
intercourse and after that she was pregnant. According to the
pregnancy report of the victim, the victim took MTP Pill for pregnancy
termination. In the emergency, medical officer conducted pregnancy
test and it was found positive. PW-5, Dr. Rakesh Das has marked the
medical report of the accused person as Exbt-P10 which states that
he is capable of performing sexual intercourse. Moreover, the accused
has not given any specific reply to deny the case of the prosecution to
prove his innocence. Even during examination of accused appellant
under Section 313 of the CrPC no material came out to disbelieve the
prosecution story.
[21] So we are of the view that the victim was raped by the
accused-appellant Arjun Debnath and none else. The offence
committed by the accused-appellant cannot be seen lightly when the
life of a girl is at stake. It appears to this court that the accused-
appellant not only breached the trust of an uncle but also committed
a heinous crime which attracts the intervention of the law for doing
justice to the victim.
[22] Having considered thus, we come to this conclusion that
the prosecution has been able to establish the prima facie case
beyond reasonable doubt by proving the age of the victim, place of
the offence and also beyond reasonable doubt that the accused has
committed the offence. Accordingly, this court is of the view that the
trial court has rightly convicted the appellant based on material
evidence produced by the prosecution and there is no infirmity in the
impugned findings regarding conviction.
[23] In view of foregoing analysis, in our view, the learned trial
court has appreciated the evidence on permissible legal parameters
and reached to a plausible conclusion. The prosecution could establish
its case beyond reasonable doubt. Thus, we find no reason to
interfere in the impugned judgment as passed by the learned trial
court convicting the appellant to suffer rigorous imprisonment for 20
years.
[24] Accordingly, the appeal fails and the same is hereby
dismissed. Send down the LCRs. Pending application(s), if any, also
stands disposed.
JUDGE JUDGE
Dipak
DIPAK DAS DIPAK DAS
Date: 2023.12.06
16:27:49 +05'30'
