Sri Sahid Miah (40 Years) vs The State Of Tripura
2023 Latest Caselaw 67 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                     Criminal Appeal No.04 of 2022

Sri Sahid Miah (40 years), son of late Hasem Miah, resident of Samukcherra
(Kuki Cherra), P.S. Kakraban, District- Gomati
                                                      ...... Appellant(s)
                            VERSUS
The State of Tripura
                                                      ......Respondent(s)

For Appellant(s) : Mr. T.D. Majumder, Sr. Advocate, Ms. R. Debbarma, Advocate.

For Respondent(s) : Mr. Ratan Datta, Public Prosecutor, Mr. S. Ghosh, Addl. P.P.

HON'BLE THE CHIEF JUSTICE (ACTING) Date of hearing and judgment : 16th January, 2023.

            Whether fit for reporting          : YES / NO.


                       JUDGMENT & ORDER (ORAL)

Heard Mr. T.D. Majumder, learned senior counsel appearing for

the appellant and also heard Mr. S. Ghosh, learned Additional Public

Prosecutor appearing for the respondent-State.

[2] This appeal filed under Section 374 of the Code of Criminal

Procedure (Cr.P.C., for short) is directed against the judgment dated

18.02.2022 passed by the learned Special Judge, Gomati District, Udaipur in

Case No. Special 06 of 2020 (POCSO) whereby the learned Special Judge

has convicted the appellant under Sections 354 of the Indian Penal Code

(IPC, for short) and Section 8 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act, 2012 for short) and sentenced him to

suffer R.I. for three years and also to pay a fine of Rs.5,000/- in default to

suffer R.I. for two months.

[3] The facts of the case revealed from the F.I.R. as well as from

record, in a nutshell, are that one Rupa Begam lodged an FIR with O.C.

Kakraban Police Station on 04.05.2020 inter alia alleging that her daughter

Pinki Begam (12 years) was molested in the neighbouring house while she

went to bring Chungi (an implement) used for making rice cake. Taking the

advantage of vacant house, the accused appellant called to touch her breast

and other parts of her body for ill motive. Her daughter dashed the accused

and fled away from the place and informed the incident to us at home. Said

complaint was registered as Kakraban P.S. Case No. 2020 KKB 031 dated

04.05.2020 under Section 354 of IPC and Section 8 of POCSO Act, 2012.

[4] In course of investigation the police charge sheeted the accused

vide charge sheet No.24 of 2020 dated 31.05.2020 and prayed before the

Court to summon the accused to face trial. The learned trial court took

cognizance of the case and framed charge on 15.01.2021 under Section 354

of IPC and Section 8 of POCSO Act, 2012. The accused pleaded not guilty

and claimed to be tried. To prove the charge, the prosecution produced 9

witnesses and produced 7 documents which were duly marked exhibits and

only material object was also produced i.e. Chungi. No defence witnesses

were produced. The learned trial Court examined the witnesses under

Section 31 of Cr.P.C and afforded the accused-appellant to explain the

circumstances.

[5] After hearing the argument of both sides, the learned Court

convicted the appellant under Section 354 of IPC and Section 8 of POCSO

Act, 2012 and heard him on the question of sentence. Upon hearing him the

learned Court sentenced the accused appellant under Section 8 of POCSO

Act, 2012 for rigorous imprisonment of three years and a fine of Rs.5,000/-

in default to suffer R.I. for further 2(two) months. The operative portion of

the judgment reads as follows :

"In the result thereof, the convict namely, Sahid Miah is sentenced to suffer rigorous imprisonment for a period of 3(three) years for his conviction under Section 8 of the Protection of Children from Sexual Offences Act and is also sentenced to pay a fine of Rs.5,000/-(rupees five thousand) in default to suffer rigorous imprisonment for 2(two) months. Fine money if realized shall be paid to the victim girl. The period of detention in custody suffered during the investigation or trial of this case shall be set off from the substantive sentence of imprisonment."

[6] Being aggrieved and dissatisfied with the judgment of the

learned Special Judge, the appellant has filed this appeal seeking the

following reliefs:

"(i) For the reasons stated above and as may be argued at the time of hearing, this appeal may kindly be allowed;

(ii) The record and proceedings in Special (POCSO) 06 of 2020 in the court of the Ld. Special Judge, Gomati Tripura, Udaipur be called for;

(iii) The order dated 18.02.2022 under appeal be set aside and quashed and orders deemed just and proper be kindly passed;

(iv) The appellant be kindly acquitted from the offence punishable u/s 8 of the POCSO Act, 2012;

(v) During the pendency of this appeal, the orders granting bail be kindly issued with immediate effect in favour of the appellant;

(vi) Any other orders in the interest of justice be kindly passed, for which act of grace and favour, this appellant as bounden in duty shall ever pray."

[7] Mr. T.D. Majumder, learned senior counsel appearing for the

appellant, contends that since the age of the victim girl was not proved,

Section 354 of IPC will come and not POCSO and prays that the accused-

appellant may kindly be acquitted from the offence under Section 8 of the

POCSO Act.

[8] On the other hand, Mr. S. Ghosh, learned Addl. Public

Prosecutor appearing for the respondent-State, in rebuttal of the submissions

advanced by the learned counsel for the appellant contends that regarding

age, the mother of the victim girl has specifically stated as 12 years and there

is no denial to that effect and the victim girl while deposing stated that her

age is 13 years i.e. one year after the incident she was deposed.

[9] The only point which has been asserted by the learned senior

counsel for the appellant Mr. T.D. Majumder that the age of the victim girl

was not proved on the strength of birth certificate and on the oral statement

made by the parents though to some extent can be relied but total credence

cannot be given when it comes to the case of punishing the accused person.

Mr. S. Ghosh, learned Additional Public Prosecutor appearing for the State

submits that since the statement of the mother and the victim girl say that she

was 12 years and at the stage of evidence she was 13 years, it can be

considered as a POCSO matter. However, when it comes to imposing

punishment on the accused person, this Court prima facie feels that a proper

adjudication of retention be placed on record to sentence a person and since

there is no evidence on the point to highlight the age of the victim girl, this

Court considers that the matter does not fall under Section 8 of POCSO Act

but insofar as Section 354 of IPC is concerned, it is a case of imposing

punishment upon the accused.

[10] Having considered the submissions of learned counsel for both

the parties, this Court on appreciating the evidence of the prosecution

witness has come to the conclusion that the ingredients of Section 8 of the

POCSO Act with regard to molestation of the victim girl has not been

established beyond reasonable doubt. Therefore, the punishment imposed by

the learned Special Judge (POCSO) is modified and converted into 1(one)

year under Section 354 of IPC. Whatever the amount of period he was in jail

that would be computed from the period of sentence.

[11] With the above observations, this criminal appeal is partly

allowed and disposed of.

[12] Send down the lower court records forthwith.

Pending application(s), if any, also stands disposed of.

CHIEF JUSTICE (ACTING)

Dipesh