High Court Of Tripura vs The State Of Tripura
2023 Latest Caselaw 769 Tri

                                 Page 1



                   HIGH COURT OF TRIPURA
                          AGARTALA
                      Crl. A.J 28/2022
Sri Kush Das
son of late Narayan Das, resident of West Halahali,
P.S. Kamalpur, District- Dhalai Tripura
                                                                     ----Appellant
               Versus
1. The State of Tripura                                       ----Respondent
For Appellant(s)                :         Ms. V. Poddar, Advocate
For Respondent(s)               :         Mr. S. Debnath, Addl. PP
Date of hearing and delivery of
Judgment & Order                :         13.09.2023
Whether fit for reporting       :         Yes / No

         HON'BLE MR. JUSTICE T. AMARNATH GOUD
           HON'BLE MR. JUSTICE ARINDAM LODH
                           JUDGMENT (ORAL)

(Amarnath Goud, J) Heard Ms. V. Poddar, learned counsel appearing for the appellant

as well as Mr. S. Debnath, learned Additional PP appearing on behalf of the

respondent-State.

2. This appeal has been preferred by the appellant challenging the

judgment and order of conviction and sentence dated 30.06.2022 passed by the

learned Special Judge, Dhalai Judicial District, Kamalpur, in case No. Special

25 (POCSO) of 2018, whereby the accused/appellant was convicted under

Section 6(1) of the Protection of Children from Sexual Offences Act, 2012

(herein after referred as POCSO Act) and sentenced him to undergo rigorous

imprisonment for 10(ten) years and to pay a fine of Rs.10,000/- with default

stipulation.

3. The fact leading to filing of the present appeal, is that, the

complainant (PW-1) lodged complaint with the Officer-in-Charge of Kamalpur

police station alleging inter alia that on 01.10.2018 at about 9.00 p.m. the

accused-appellant called daughter of the complainant i.e. the victim, who is 16

years of age in his house and forcefully committed rape upon her against her Page 2

will and scuffled with her and the victim somehow managed to release herself

from the hand of the appellant. It was further alleged that the complainant came

to know from her daughter that oftenly the appellant committed rape upon her

daughter by threatening as well as on pretext of marrying her and due to social

stigma and fear, her daughter did not disclose the matter.

4. The said complaint was registered as Kamalpur PS case no. 127 of

2018 under Sections 417/376/506 of the IPC read with Section 4 of the POCSO

Act, 2012. The matter was investigated by the investigating officer, and after

completion of investigation submitted charge-sheet against the accused-

appellant under Sections 417/376(2)(f)/506 of the IPC and under Section 6 of

the POCSO Act. At the commencement of trial, the learned Sessions Judge

framed charge under Sections 417/376(2)(f) of the IPC and under Section 6 of

the POCSO Act IPC against the accused-appellant, to which he pleaded not

guilty and claimed to be tried.

5. During trial, the prosecution to establish the charges had adduced

14 witnesses and exhibited some documents. After closure of recording

evidences, the accused-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 the accused-

appellant, as aforestated. Being aggrieved, the present appeal is preferred by the

appellant.

6. Ms. V. Poddar, learned counsel for the appellant has submitted

that without properly appreciating the evidences on record, the learned trial

court has convicted the accused-appellant, hence, she has prayed for quashing

the said order of conviction and sentence. Ms. Poddar, learned counsel also

questioned the pupilage certificate of the victim and submitted that the correct Page 3

age of the victim has not been ascertained properly. Learned counsel has also

submitted that the year of birth has been manipulated in the pupilage certificate

of the victim. She has also submitted that there is no eye witness to the alleged

incident. Learned counsel has further submitted that the FIR has been lodged

after 22 hours of the incident without proper explanation. Learned counsel has

urged to set-aside the order of conviction and sentence as passed by the learned

trial court.

7. On the other hand, learned counsel appearing for the respondent

has urged to maintain the findings of the learned trial court since there is no

infirmity or illegality in the findings of the learned trial court.

8. We have considered the submissions for learned counsel appearing

for the parties. We have perused the evidences and materials on record and the

judgment passed by the learned Sessions Judge. To substantiate the findings of

the learned trial court, this court has perused the deposition of the prosecution.

9. PW-1, mother of the victim is the complainant and she in her

deposition has stated that her daughter told her that she was raped by the

accused on two occasions, firstly on 28.09.2018 and secondly on 01.10.2018.

She further deposed that her daughter told her that the appellant had promised

to marry her and committed rape upon her in his own home which is adjacent to

their house. She further stated that the appellant raped her daughter and

threatened her that he will kill them if she discloses the fact to anybody else.

She further deposed that her daughter was afraid and she told about the incident

to her only on 01.10.2018.

PW-2, is the victim. She in her deposition stated that on 28.09.2018 at 9

p.m. the accused took her to his room in his home and closed the doors and

then raped her against her wish and threatened her that he will kill her and her

family members if she disclose the incident to anybody. PW-2 further deposed Page 4

that on 01.10.2018, the appellant again took her to his room and again raped

her. This witness further deposed that she told her mother about the incident

and thereafter her mother filed a case before the police. PW-2 also deposed that

she was medically examined by doctor after filing of the case and had given

statement to the Magistrate at Kamalpur court.

PW-3, is the father of the victim and he heard about the incident from his

wife. PWs 4, 5, 6 and 8 are the seizure witnesses. PW-7 is the scribe. PW-9 is

the scientific officer from SFSL. PW-10 is a hospital staff. PW-11, examined

the victim in Kamalpur hospital. PW-12, examined the appellant in the

Kamalpur hospital. PW-13 is the I.O of the case. PW-14 is the Headmaster of

Halahali Class XII school who issued pupilage certificate of the victim.

10. On appreciation of the pupilage certificate, it is evident that said

certificate was issued by PW-14 wherein it is stated that the victim took

admission in class VI on 16.01.2013 and studied till 2016 and as per the

admission register her date of birth is 15.01.2002 . As per deposition of PW 14,

the victim took admission in the school in Class VI with support of certificate

from primary education, which she took from another school and that

certificate to prove her actual age was not brought on record by the prosecution.

The prosecution witness simply has proved the certificate as per police

requisition. Further, PW-14, official of the concerned school failed to establish

the actual age of the victim and also the school register of her primary school

which can prove her actual age. PW-14 also did not disclose as to where from

they have obtained the School Certificate of the victim. The Admission

Register of the school in which the victim first attended, would be a relevant

piece of evidence for determining her date of birth, but the same has not proved

by the prosecution. On the other hand, neither the bone ossification test of the

victim has been done for age determination of the victim nor the school register Page 5

of the victim and the entry in academic record of the victim have been proved

by the prosecution which would have precedence over her medical age

determination. Thus, the significance of victim's medical age determination

creates serious doubt onto the prosecution case. Further, the prosecution has

failed to secure the evidence of the person who had recorded the date of birth of

the victim in the register of the earlier school where she prosecuted her primary

studies. Thus, it is not proved with preponderance of probabilities that victim

was minor on the date of incident and as the date of birth recorded in school

record of victim is not free from doubt.

11. From the record it is seen that the complainant, as witness has

recorded her statement under Section 164(5) Cr.P.C. before the SDJM,

Kamalpur in connection with the instant case and in her statement, the

complainant has stated that Kush and my daughter has a distant relationship of

maternal uncle and niece, but it was not known to me that a relationship has

developed between them for the last one and half years. The victim was also

examined by the learned SDJM, Kamalpur under section 164(5) CrPC wherein

she has stated that 'My mother is the petitioner of this case. She has filed this

case against Kush Das for raping me. Kush is my neighbour. For the last one

and half year there has grown a love relationship between us. Often he liked to

establish physical relationship with me. He used to say that he will marry me.

Though I used to love him but I had no support in this matter. On 28.09.2018

AD last at 11 o'clock at night, he called me in his house and raped me.

Thereafter again on 01.10.2018 he again raped me in his house. Thereafter I

returned to my house and cried and told the matter to my mother in detail.

Though I loved Kush but I could not think that he can do this bad act with me.'

Thus, from the conjoint reading of the statement of the victim recorded

under Section 164(5) CrPC and the medical evidence of the victim it can safely Page 6

be presumed that the relationship between the accused and the victim was

consensual.

12. From statements of the complainant and the victim recorded under

Section 164(5) CrPC, it is evident that there was a love affair between the

victim and the appellant. It is further evident that the victim went to the house

of the appellant on call/request by the appellant wherein the appellant had

sexual intercourse with the victim and that incident happened not only once but

twice and on both the occasions, the victim went to the house of the appellant

which clearly demonstrate that there was no force or pressure or threat for

sexual act made on the part of the appellant towards the victim, on the contrary,

the victim had consented to have the sexual intercourse with the appellant. Yet,

the medical evidence (deposition of PW-11) indicated that the victim had a

ruptured hymen; there was no external injury at her private parts. In view of

these facts, this court is of the opinion that the prosecution was not able to

establish that there was any penetrative sexual assault as a result of coercion or

compulsion on the part of the appellant. All the facts proved in this case clearly

indicate that the victim had willingness to accompany the appellant for sexual

intercourse.

13. Admittedly, the appellant has been held guilty of offence under

Section 6(1) of POCSO Act which has been enacted to protect the children

from offences of sexual assault, sexual harassment and contains stringent

provisions as to safeguard the interest and the well being of the children. 'Child'

within the meaning of Section 2(d) of the POCSO Act means any person below

the age of 18 years. Hence, in order to attract the provisions of the POCSO Act,

the onus is on the prosecution to prove that the victim was a 'child' within the

meaning of section 2(d) of the POCSO Act, but the age of the victim, to treat

her below 18 years has not been proved by any documentary or oral evidence.

Page 7

When there is doubt about the age of the person, the age has to be determined

first on the basis of the date of birth certificate from the primary school or the

matriculation or equivalent certificate from the concerned examination board

and if no such material is available then on the basis of birth certificate given

by a Corporation or a Municipal Authority or Panchayat and in the absence of

such evidence on the basis of ossification test or any other medical age

determination test, but here in the instant case, such procedure has not been

followed which creates serious doubt on to the age of the victim.

14. This discrepancy also leaves room for ample doubt with regard to

the correct age of the victim, the benefit of which must necessarily go in favour

of the appellant. The prosecution has, therefore, failed to prove beyond

reasonable doubt that the victim was below 18 years of age. This was relevant

as the evidences on record indicates that the physical relationship between the

appellant and the victim was consensual. In the absence of evidence to prove

that the victim was below 18 years of age and also establishment of consensual

relationship between the victim and the appellant, the provision of the POCSO

Act cannot be invoked in this case.

15. In the light of the above, the instant appeal is allowed. The

appellant is acquitted and set at liberty forthwith. The conviction and sentence

dated 30.06.2022 recorded by the learned Special Judge, Dhalai Judicial

District, Kamalpur, in case No. Special 25 (POCSO) of 2018 under Section

6(1) of POCSO Act is hereby set aside. Consequently, the appellant shall be

released from custody forthwith, if not required in any other case.

Send down the LCRs.

               JUDGE                                          JUDGE




               Digitally signed by SAIKAT KAR
SAIKAT KAR     Date: 2023.09.16 13:52:16
               +05'30'