Tripura High Court
Sri Pranjit Baidya vs The State Of Tripura on 16 July, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.18 OF 2023
Sri Pranjit Baidya
S/o- Sri Hiralal Baidya,
Resident of West Pilak, Datta Para,
P.S.- Baikhora, District-South Tripura
...... Appellant(s)
Versus
The State of Tripura
.......Respondent(s)
For the Appellant(s) : Mr. A. Acharjee, Advocate.
Ms. M. Chakraborty, Advocate.
For the Respondent(s) : Mr. Raju Datta, P.P.
Date of hearing and delivery of
Judgment & Order : 16.07.2024
Whether fit for reporting : NO.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
(T. AMARNATH GOUD,J)
Heard Mr. A. Acharjee, learned counsel along with
Ms. M. Chakraborty, learned counsel appearing for the appellant as
well as Mr. Raju Datta, learned P.P., appearing for the State-
respondent.
2. The present appeal has been filed aggrieved by the
order dated 14.03.2023 passed by the learned Special Judge, South
Tripura, Belonia in case No. Special No.29(POCSO) of 2021 whereby
and whereunder the appellant has been convicted under Section 6
of POCSO Act and sentenced to suffer R.I. for 20 (twenty) years
and to pay a fine of Rs.10,000/-(ten thousand) for the said offence,
with default stipulation.
3. The case of the prosecution is that P.W.-6, the 1st
wife of the accused person i.e., the appellant herein filed a
complaint before the concerned SHO indicating that her husband
has married a minor girl and he is staying with her. Apart from this,
other allegations were also leveled against the accused person. In
pursuant thereof, the police took up the investigation and found the
accused person along with P.W.-2, in a house and noticed that
P.W.-2, the minor girl was pregnant. Thereafter, they followed the
counseling procedure with the counselor and other methods as
required. Subsequently, the final charge sheet was filed and the
matter was tried before the Court below by framing charges which
are as follows:-
CHARGE
Firstly:- That you, on several dates and times and lastly on 25.04.2020 at
anytime in your house situated at Ramraibari (Saha Pathar) under
Baikhora police station voluntarily caused hurt to your wife Smt. Susmita
Majumder (Baidya) and thereby committed an offence punishable under
section 323 of the Indian Penal Code and within the cognizance of this
Court.
Secondly: That you, on any day in the month of June, 2021 at any time
kidnapped or abducted the victim girl (name is withheld) from her house
situated at Ramraibari (Majumder Para) under Baikhora police station,
with the intent that she will be compelled to marry against her will or
she will be forced or seduced to illicit intercourse and thereby committed
an offence punishable under section 366 of the Indian Penal Code and
within the cognizance of this Court of Sessions.
Thirdly: That you, on any day, at any time in the year 2021 at Ramraibari
under Baikhora police station having a wife to wit, Smt. Susmita
Majumder (Baidya) living, married again the minor victim girl (name is
withheld) and such marriage being void by reason of its taking place
during the life time of the said wife and thereby committed an offence
punishable under section 494 of the Indian Penal Code and within the
cognizance of this Court.
Fourthly: That you, on several dates and times in the house of the victim
girl situated at Ramraibari (Majumder Para) under Baikhora police
station committed rape repeatedly upon the victim girl, under sixteen
years of age, and in consequence of your such rape the victim girl
became pregnant and thereby committed an offence punishable under
section 376(3) of the Indian Penal Code and within the cognizance of
this Court.
Fifthly:- That you, on several dates and times in the house of the victim
child situated at Ramraibari (Majumder Para) under Baikhora police
station committed aggravated penetrative sexual assault repeatedly
upon the victim child, who is below sixteen years of age and thereby
committed an offence within the meaning of section 5(1) of POCSO Act,
2012 which is punishable under section 6 of POCSO Act, 2012 and within
the cognizance of this Court.
Lastly:-That you, being a male adult contracted and performed a child
Marrige marriage with a child on any day in the year 2021 in a Kali
temple situated at Ramraibari under Baikhora police station in
contravention of section 9 and 10 of Prohibition of Child Marriage Act,
2006 and thereby committed an offence punishable under section 9 and
10 of Prohibition of Child Marriage Act, 2006 and within the cognizance
of this Court."
4. The Court below examined as many as 15
witnesses and also examined several documents i.e. Exbt. No.P.1 to
P.27. On the strength of the evidence, the Court below convicted
the accused person toward imprisonment of 20 years and to pay a
fine of Rs.10,000/-(ten thousand) for the said offence, with default
stipulation.
5. Aggrieved thereby, the present appeal has been
filed seeking to set aside the impugned Judgment and Order of
conviction dated 14.03.2023.
6. Mr. A. Acharjee, learned counsel appearing for the
appellant-accused person in support of his pleading contended that
P.W.-2 who is said to be a victim is not the complainant and the
father of P.W.-2, i.e., the minor girl and all others have turned
hostile. There was also sought of compromise entered amongst
them and it is not a case under the POCSO Act. Further, learned
counsel tried to strengthen his argument by stating the evidence of
P.W.-2 wherein, she has categorically stated that her age is 19 in
the year 2022 and the cause of action has arisen in the year 2021.
So, at the relevant point in time, when the cause of action arose,
she was 18 years old i.e., major, and not 15 years. P.W.-2, in her
cross-examination further deposed that the father of the minor child
is Haradhan Das and not the appellant-accused person herein.
7. Mr. Acharjee, learned counsel further relied upon
paras-41, 42, 43, 44 and 45 of the Judgment of the Hon‟ble
High Court of Himachal Pradesh, titled as Ranjeet Kumar Vs.
State of H.P. an ors vide case No.Cr.MMO No.648 of 2023 dated
08.12.2023, wherein, the learned High Court has given
consideration in respect of the rape coupled with marriage even in
POCSO cases, and put a quietus to the litigation by granting
acquittal to the accused person. The same is also produced here-in-
under:-
"41. Adverting to the facts of the present case, no
doubt, the accused has been charged for the offences punishable
under Sections 366, 376, 212 and 120-B IPC and Section 4 of the
POCSO Act, but then it cannot be ignored that the prosecution was set
into motion only because the victim happens to be a child but
otherwise she was in love with the accused. It is also not in dispute
that the accused was interested to soleminise marriage with the child
victim and has, in fact, soleminised marriage on 09.03.2023 and
thereafter has also entered into a compromise on 17.04.2023. In such
circumstances, even while bearing in mind the pertinent observations
of the Hon'ble Supreme Court in Alakh Alok Srivastava and Dr.
Maroti's cases (supra), the Court could still quash the FIR after
satisfying itself that the child victim and her family members had
settled the dispute and the victim got married and was leading a
peaceful life and, therefore, allowing the prosecution to continue in
such case would only result in disturbance in their happy family life
and ends of justice in such circumstances would demand that the
parties be allowed to compromise. However, before doing so, the
Court must ensure that the marriage is not a camouflage to escape
punishment and the consent given by the victim for compromise is
voluntarily. The Court must also be satisfied after considering all the
facts and circumstances of the case that quashing the proceedings
would promote justice for the victim and continuance of the
proceedings would cause injustice.
42. Therefore, in such circumstances, compounding of the
offence, in our considered opinion would enable both the parties to
lead life of respect and dignity in the society. Once, there is no
dispute between them, then obviously the law cannot be so harsh so
as to stand as wall between the parties, because the law has to
secure the future of the parties, and continuation of criminal
proceedings in such circumstances, would only cause an irreparable
harassment and hardship and may even tarnish and spoil the
reputation of the victim. The Court proceedings cannot be permitted
to de-generate into a weapon of harassment and persecution. The
power to do complete justice is the very essence of every judicial
justice dispensation system. It cannot be diluted by distorted
perceptions and is not a slave to anything, except to the caution and
circumspection, the standards of which the Court sets before it, in
exercise of such plenary and unfettered power inherently vested in it
while donning the cloak of compassion to achieve the ends of justice.
No embargo, be in the shape of Section 320(9) of the Cr.P.C. or any
other such curtailment can whittle down the power of the High Court
under Section 482 Cr.P.C. to do complete justice.
43. The compromise, in a modern society, is the sine qua
non of harmony and orderly behaviour. It is the soul of justice and if
the power under Section 482 of the Cr.P.C. is used to enhance such a
compromise which, in turn, enhances the social amity and reduces
friction, then it truly is "finest hour of justice".
44. As observed by the Hon'ble Supreme Court in Mrs.
Shakuntala Sawhney vs. Mrs. Kaushalya Sawhney and others, 1980
(1) SCC 63, while summing up the essence of compromise, it
observed as under:-
"....The finest hour of justice arrives propitiously when parties,
despite falling apart, bury the hatchet and weave a sense of
fellowship of reunion."
45. In the given facts and circumstances, we are persuaded
to uphold the view taken by the learned Single Judge(s) in Sahil and
Sakshi's cases (supra) and conclude that the High Court in a case of
instant kind where the victim had earlier alleged that she had been
subjected to sexual assault but then has later on settled the dispute
and has got married to the accused and is leading a peaceful life.
Invariably, in such like cases, the Court after being satisfied would
not allow the prosecution to continue, which would only result in
disturbances of their happy family life."
8. On the same point, Mr. Acharjee, learned counsel
also referred to paras 50, 51, 52, and 58 of the Hon'ble Apex
Court Judgment reported in (2012) 10 SCC 3030 titled as Gian
Singh Vs. State of Punjab and anr. The same is given here-in-
under:-
"50. A three-Judge Bench of the Bombay High Court
in Abasaheb Yadav Honmane v. State of Maharashtra dealt with the
inherent power of the High Court under Section 482 of the Code
vis-à-vis the express bar for compounding of the non-
compoundable offences in Section 320(9) of the Code. The High
Court referred to various decisions of this Court and also the
decisions of the various High Courts and then stated as follows :
"The power of compounding on one hand and quashing of criminal
proceedings in exercise of inherent powers on the other, are
incapable of being treated as synonymous or even inter-
changeable in law. The conditions precedent and satisfaction of
criteria in each of these cases are distinct and different. May be,
the only aspect where they have any commonality is the result of
exercise of such power in favour of the accused, as acquittal is the
end result in both these cases. Both these powers are to be
exercised for valid grounds and with some element of objectivity.
Particularly, the power of quashing the FIR or criminal proceedings
by the Court by taking recourse to inherent powers is expected to
be used sparingly and that too without losing sight of impact of
such order on the criminal justice delivery system. It may be
obligatory upon the Court to strike a balance between the nature of
the offence and the need to pass an order in exercise of inherent
powers, as the object of criminal law is protection of public by
maintenance of law and order."
51. Section 320 of the Code articulates public policy with regard to
the compounding of offences. It catalogues the offences punishable
under IPC which may be compounded by the parties without
permission of the Court and the composition of certain offences
with the permission of the court. The offences punishable under the
special statutes are not covered by Section 320. When an offence is
compoundable under Section 320, abatement of such offence or an
attempt to commit such offence or where the accused is liable
under Section 34 or 149 of the IPC can also be compounded in the
same manner. A person who is under 18 years of age or is an idiot
or a lunatic is not competent to contract compounding of offence
but the same can be done on his behalf with the permission of the
court. If a person is otherwise competent to compound an offence
is dead, his legal representatives may also compound the offence
with the permission of the court. Where the accused has been
committed for trial or he has been convicted and the appeal is
pending, composition can only be done with the leave of the court
to which he has been committed or with the leave of the appeal
court, as the case may be. The revisional court is also competent to
allow any person to compound any offence who is competent to
compound. The consequence of the composition of an offence is
acquittal of the accused. Sub-section (9) of Section 320 mandates
that no offence shall be compounded except as provided by this
Section. Obviously, in view thereof the composition of an offence
has to be in accord with Section 320 and in no other manner.
52. The question is with regard to the inherent power of the High
Court in quashing the criminal proceedings against an offender who
has settled his dispute with the victim of the crime but the crime in
which he is allegedly involved is not compoundable under Section
320 of the Code.
54. Where High Court quashes a criminal proceeding having regard
to the fact that dispute between the offender and victim has been
settled although offences are not compoundable, it does so as in its
opinion, continuation of criminal proceedings will be an exercise in
futility and justice in the case demands that the dispute between
the parties is put to an end and peace is restored; securing the
ends of justice being the ultimate guiding factor. No doubt, crimes
are acts which have harmful effect on the public and consist in
wrong doing that seriously endangers and threatens well-being of
society and it is not safe to leave the crime- doer only because he
and the victim have settled the dispute amicably or that the victim
has been paid compensation, yet certain crimes have been made
compoundable in law, with or without permission of the Court. In
respect of serious offences like murder, rape, dacoity, etc; or other
offences of mental depravity under IPC or offences of moral
turpitude under special statutes, like Prevention of Corruption Act
or the offences committed by public servants while working in that
capacity, the settlement between offender and victim can have no
legal sanction at all. However, certain offences which
overwhelmingly and predominantly bear civil flavour having arisen
out of civil, mercantile, commercial, financial, partnership or such
like transactions or the offences arising out of matrimony,
particularly relating to dowry, etc. or the family dispute, where the
wrong is basically to victim and the offender and victim have
settled all disputes between them amicably, irrespective of the fact
that such offences have not been made compoundable, the High
Court may within the framework of its inherent power, quash the
criminal proceeding or criminal complaint or F.I.R if it is satisfied
that on the face of such settlement, there is hardly any likelihood of
offender being convicted and by not quashing the criminal
proceedings, justice shall be casualty and ends of justice shall be
defeated. The above list is illustrative and not exhaustive. Each
case will depend on its own facts and no hard and fast category can
be prescribed.
9. Pre contra, Mr. R. Datta, learned P.P., appearing for
the State-respondent contended that there is enough evidence to
confirm the conviction of the accused-appellant herein. He relied on
the evidence of the P.W.-6 complainant, P.W.-10 and Exbt-14, the
forensic report, wherein, it is indicated that as per the DNA report,
the biological parents of the minor child are P.W.-2 and Sri Pranjit
Baidya.
10. Learned P.P., to strengthen his argument placed his
reliance upon paras-36, 37, 75, and 76 of the Judgment of the
Hon'ble Supreme reported in (2017) 10 SCC 800 titled as
Independent Thought Vs. Union of India and anrs. The same
is produced herein under:-
"36. One of the more important legislations on the subject of
protective rights of children is the Prohibition of Child Marriage Act, 2006
(for short „the PCMA‟). For the purposes of the PCMA, a „child‟ is a male
who has not completed 21 years of age and a female who has not
completed 18 years of age and a „child marriage‟ means a marriage to
which either contracting party is a child.
37. Section 3 of the PCMA provides that a child marriage is
voidable at the option of any one of the parties to the child marriage - a
child marriage is not void, but only voidable. Interestingly, and
notwithstanding the fact that a child marriage is only voidable,
Parliament has made a child marriage an offence and has provided
punishments for contracting a child marriage. For instance, Section 9 of
the PCMA provides that any male adult above 18 years of age marrying a
child shall be punishable with rigorous imprisonment which may extend
to two years or with fine which may extend to one lakh rupees or with
both. Therefore regardless of his age, a male is penalized under this
section if he marries a girl child. Section 10 of the PCMA provides that
whoever performs, conducts, directs or abets any child W.P. (C) No. 382
of 2013 marriage shall be punishable with rigorous imprisonment which
may extend to two years and shall be liable to fine which may extend to
one lakh rupees; Section 11 of the PCMA provides punishment for
promoting or permitting solemnization of a child marriage; and finally
Section 13 of the PCMA provides that the jurisdictional judicial officer
may injunct the performance of a child marriage while Section 14 of the
PCMA provides that any child marriage solemnized in violation of an
injunction under Section 13 shall be void.
73. On a combined reading of C.R. v. UK and Eisenstadt v. Baird it is quite
clear that a rapist remains a rapist and marriage with the victim does not
convert him into a non-rapist. Similarly, a rape is a rape whether it is
described as such or is described as penetrative sexual assault or
aggravated penetrative sexual assault. A rape that actually occurs
cannot legislatively be simply wished away or legislatively denied as
non-existent.
Harmonizing the IPC, the POCSO Act, the JJ Act and the PCMA
74. There is an apparent conflict or incongruity between the provisions
of the IPC and the POCSO Act. The rape of a married girl child (a girl
child between 15 and 18 years of age) is not rape under the IPC and
therefore not an offence in view of Exception 2 to Section 375 thereof
but it is an offence of aggravated penetrative sexual assault under
Section 5(n) of the POCSO Act and punishable under Section 6 of that
Act. This conflict or incongruity needs to be resolved in the best interest
of the girl child and the provisions of various complementary statutes
need to be harmonized and read purposively to present an articulate
whole."
11. Learned P.P. also relied upon para-17 of the
Hon'ble Apex Court Judgment reported in (2015) 7 SCC 681 titled
as State of Madhya Pradesh Vs. Madanlal. The same is
produced here-in-under:-
"17. In this context, it is profitable to reproduce a passage
from Shimbhu and Another v. State of Haryana wherein, a three-
Judge Bench has ruled thus:-
"Further, a compromise entered into between the parties cannot be
construed as a leading factor based on which lesser punishment can
be awarded. Rape is a non-compoundable offence and it is an offence
against the society and is not a matter to be left for the parties to
compromise and settle. Since the Court cannot always be assured that
the consent given by the victim in compromising the case is a genuine
consent, there is every chance that she might have been pressurised
by the convicts or the trauma undergone by her all the years might
have compelled her to opt for a compromise. In fact, accepting this
proposition will put an additional burden on the victim. The accused
may use all his influence to pressurise her for a compromise. So, in
the interest of justice and to avoid unnecessary pressure/harassment
to the victim, it would not be safe in considering the compromise
arrived at [pic]between the parties in rape cases to be a ground for
the Court to exercise the discretionary power under the proviso of
Section 376(2) IPC."
12. Heard both sides and perused the evidence on
record.
13. The point which falls for consideration before this
Court is the examination of evidence of P.W.-6 coupled with P.W.-2.
14. Though the deposition of P.W.-2 was declared
hostile on the prayer of the prosecution, but, it is stated in her
witness that on the day of deposition i.e. on the 18th day of
February, 2022, she was 19 years of age. Thereafter, the attention
of the witness was drawn to the statement made under Section 161
of Cr.P.C.
Thereafter, the said witness was again re-examined
on 3rd November 2022, wherein, she stated that the name of her
son is Deep Pritam Majumder and the name of her husband is
Haradhan Das. Haradhan Das is the father of her son Deep Pritam
Majumder. She does not know any Pranjit Baidya.
15. P.W.-6, in her deposition, stated that on
28.07.2014 her marriage was solemnized with the accused Pranjit
Baidya and subsequently within one month of the marriage, she
became pregnant. Her in-laws started to torture her when she was
pregnant for two and a half months. Due to their assault, her child
was aborted. Her parents came to her matrimonial home and they
tried to convince her in-laws. Thereafter, her husband along with in-
laws did not torture her. But after three/four months again her in-
laws and her husband started to torture her. Her husband on each
and every issue used to slap her. She also deposed that she came
to know in the year 2019 from her neighbours about the illegal
relationship of her husband. Her husband became habitual to come
in late at night. On query, he used to tell her that because of
drinking, he was lying on the road and after getting well he
returned to the house. In the year 2019, during Durga Puja, at
about 3/3.30 am she noticed a call in the mobile of her husband.
She picked up the phone and asked who was speaking from the
other side. The lady from the other side told her name i.e. P.W.-2
and asked that who was 'she' and she asked about the identity of
that girl. She told her that it is better to ask her husband about her.
She also abused her. After cutting the call, she saw in the mobile of
her husband photos of her husband with P.W.-2 in compromising
condition. When she asked her husband about P.W.-2 her husband
told her that he would kill her and marry P.W.-2. He also pressed
her neck. She went to the house of P.W.-2 and she asked her
parents. Her parents misbehaved with her and asked her if she was
just spreading rumour against P.W.-2. She further deposed that in
the year 2020, she was assaulted by her husband, her father-in-
law, and her mother-in-law. Anyhow she escaped herself and went
to her parents' house. Anyhow she managed to call over the phone
and she went to Jolaibari outpost, from where her parents came
and took her to her father's house. Her husband was called to the
Family Counselling Centre, Santirbazar where he assured her that
he would not maintain his relationship with P.W-2. However, he did
not leave his relationship with P.W.-2. Her husband expelled her
from his house and has kept P.W.-2 in his house as his wife and he
also has one son from P.W.-2. According to her, she resides in the
house of her father with her six-year-old son.
In the cross, the witness has admitted that she has
not mentioned in her ejahar that one day she received one phone
from P.W.-2 in the mobile of her husband and she abused her. That,
she saw the photos of P.W.-2 with her husband in a compromising
position and that she went to the house of P.W.-2 where her
parents misbehaved with her. She admitted that she informed her
about the torture of her husband and in-laws to her neighbours
near the house of her matrimonial home and also informed Malina
Bhowmik. She also admitted that she was examined by I.O. after
registration of her FIR and she was examined by doctor after
assault and the certificate was given to the police.
16. P.W.2 being the 2nd wife and the victim under the
POCSO Act is not the complainant, but, however, to examine the
case in its entirety, since the charges are framed, it is seen from
the record that P.W.-2 has categorically deposed before the Court
that her husband is Haradhan Das and her age is 19 years. In a
given case, in our Indian Society, where there is a lot of respect and
value, it cannot be believed that P.W.2, the wife approached the
Court of law and gave wrong deposition stating that Haradhan Das
is her husband and her age is 19 years at the time of her deposition
i.e., in the year 2022. There is no specific averment of P.W.-6
before the Court below stating that her husband i.e., the accused-
person herein married P.W.-2. There is also no evidence placed on
record to say that Pranjit Baidya her husband married P.W.-2 as his
2nd wife and no particular have been elicited in this regard.
17. In view of the same, this Court feels that
considering the evidence of P.W.-2, the benefit of the doubt needs
to be extended to the accused person and accordingly, the appeal is
allowed and the impugned Judgment and Order of Conviction dated
14.03.2023 is set aside and quashed. Further, it is not a case of
determination of childbirth as to who are the parents and credence
to P.W.-10 i.e. the medial witness and Exhibit-14, the DNA report
need not be considered. Accordingly, the appellant herein be
released forthwith if not already released and wanted in any other
cases.
18. As a sequel, stay if any stands vacated, pending
application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally signed by
RAJKUMAR SUHANJIT
SUHANJIT SINGHA
Date: 2024.07.23
SINGHA 14:29:13 +05'30'
