Tripura High Court
Sri Paritosh Sen vs The State Of Tripura on 16 July, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J)No.21 of 2023
Sri Paritosh Sen,
Son of Late Gitesh Sen,
Resident of Madhya Dukli,
P.O. Madhuban,
P.S. A.D. Nagar,
District: West Tripura
---- Appellant(s)
Versus
The State of Tripura
----Respondent(s)
For Appellant(s) : Ms. R. Majumder, Adv.
For Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of Hearing and
date of delivery of
Judgment and Order : 16.07.2024
Whether fit for
Reporting : NO
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order (Oral)
[Amarnath Goud, J]
This appeal is directed challenging the judgment
and order of sentence and conviction dated 20.01.2020
passed by Learned Special Judge, Agartala, West Tripura in
connection with Case No. Special (POCSO) 35 of 2016
whereby the appellant-convict was sentenced to suffer RI
for 10 years and to pay fine of Rs.25,000/- in default to
payment of fine the convict shall suffer SI for six months
and the appellant-convict was further sentenced to suffer RI
for two years and to pay a fine of Rs.5,000/- for the offence
punishable under Section 450 in default to suffer SI for two
months and all the sentences were ordered to run
concurrently.
02. Before coming to the conclusion of this appeal let
us discuss about the subject matter of the case file before
the trial court. On 09.06.2016 at about 8 pm the appellant
entered into the dwelling house of the informant and
committed rape upon the daughter of the informant, i.e. the
victim. OC, West Agartala Women PS on receipt of
complaint registered West Agartala, Women PS Case
No.2016/WAW/047 under Section 448/376(2) (i) IPC and
also under Section 4 of POCSO Act and the case was
endorsed to ASI Smt. Upasana Debbarma for investigation.
The I.O. conducted the investigation and after completion of
investigation being prima facie satisfied laid chargesheet
against the present appellant for his prosecution before the
court vide West Agartala Women PS Charge Sheet No.55 of
2016 under Section 448/376(2)(i) of IPC and Section 4 of
POCSO Act. Accordingly cognizance of offence was taken by
the concerned court and formal charge under Section
450/376(2)(i) of IPC and Section 6 of POCSO Act was
framed against the appellant to which he pleaded not guilty
and claimed to be tried. Hence the trial commenced. During
trial to substantiate the charge prosecution before the
learned Trial Court in total has adduced nine numbers of
witness and some documentary evidences were referred by
the prosecution which marked exhibit in this case. The case
of the appellant in course of defence was totally denial of
the prosecution and as such the appellant convict during his
examination under Section 313 of Cr.P.C. denied the
allegation of the prosecution and also denied to adduce
witness in support of his defence. Finally on conclusion of
trial of the case learned Trial Court convicted the present
appellant for the charges proved against him and
accordingly this present appeal was preferred. Now let us
discuss the evidence on record of the prosecution.
03. PW-1 Smti. Shima Sarkar (Sahani) is the mother
of the victim. She deposed that her daughter's date of birth
was 27.03.2009 and she knew the appellant since her
childhood and according to the appellant used to visit her
house frequently. On 09.06.2016 about 7.30/8 pm she and
her daughter were in the house and at that time the
accused appellant came to their residence. After that
keeping the victim with the appellant she went to the shop
of her father at Bat Chowmuhani area to bring her father to
her residence and that time her husband was not present.
At around 8.00 p.m. she returned to her home and found
that her daughter was behind the shutter of the door and
was crying having mobile phone of Paritosh in her hands.
Her frock was lying upwards above her panty. The accused
was also at that time in the said hut and when she closed
the door of the hut the accused left the house. Thereafter
she gave the dinner to her daughter and asked her whether
the appellant had done anything or not. That time she did
not divulge anything to her mother. But on the following
day around 12 O'clock when she was giving bath to the
victim she felt pain in her vagina. Then being asked the
victim told that on the previous night the appellant inserted
his finger to her vagina. She also told that the accused
appellant compelled her to suck his private organ by her
mouth and then also left some white colour cough like
materials on the floor and also then removed the same from
the floor by some materials. Hearing the same she at once
met their Gram Pradhan namely Sabita Ghosh and also
another person namely Kajal Ghosh and informed them
about the incident. They came to their evidence and heard
the matter from her daughter. Thereafter they informed the
matter to the police and accordingly police came. Thereafter
the matter was mitigated but on the following day at about
11 am/12 pm she along with her husband and her daughter
went to West Agartala Women PS and narrated the incident
to them and lodged the case and after 3/4 days of lodging
of the complaint police came to her house and seized the
frock and pant of victim in her presence and she signed in
the seizure list and identified her signature marked as
Exbt.1. She further stated that medical examination the
victim was also done and police also seized some materials
in a bottle in her presence and she signed in the seizure list
but she has forgotten at which place the same was seized.
She identified her signature in the seizure list and on
identification seizure list dated 11.06.2016 which was
marked as Exbt.2. She further stated that one day the
victim was produced before Magistrate where her statement
was recorded.
During cross-examination she stated that she did
not submit any document of the victim to police and some
days prior to the occurrence one day Paritosh was taking
some food in the hut of her brother-in-law and thereafter
her husband went there and concerning that issue some
queries took place between her husband and Paritosh at
that time. Said incident of quarrel occurred about four
months prior to the date of present incident. She also stated
that she brought her father at home at about 8.00 p.m. and
on the following day of incident when police came that time
she narrated the entire matter to them which was reduced
into writing and on the following day of the incident the
matter was mitigated between them. She denied the
suggestion of the act that they demanded Rs.1 lakh from
the accused but he refused to do the same so they filed the
case also stated that the house of her parents situated
adjacent to her house intervening by another house and
they were also apprised about the incident and when the
police come her father was also present in the house. She
also stated at that relevant point of time the vagina of the
victim was found radish when she felt pain at the time of
bathing.
04. PW-2 Babul Sahani is the informant of this case
and the father of the victim. He deposed that in the year
2016 one day he returned to his home from his work at
about 8 pm and at that time his wife told him that on that
day accused Paritosh Sen came to their house and inserted
his hand inside the panty of her daughter i.e. the victim and
touched her vagina. He told that her daughter was aged
about 7 years at that time and before his return to his home
his wife already informed the neighbouring people who also
assembled in the house and police also came on his arrival
to his house and thereafter he lodged the ejahar to the
police after getting it written by one of his neighbour. He
put his signature on the ejahar and identified the same
marked as Exbt.3. He further stated that accepting putting
his signature he cannot read and write and on that day
police seized pant and frock of his daughter from his house
and after 2/3 days of lodging of the ejahar police produced
her daughter to the hospital for medical examination. He
also identified his signature in the seizure list dated
11.06.2016 which on identification was marked as Exbt.2/1.
During the cross-examination he stated that on
the day of occurrence although his ejahar was written but
he did not submit the same to the police rather told the
police that he would consider as to whether he would file
any case or not. Finally after some days he submitted the
ejahar to the police. Being asked the witness volunteered
that the accused visit their house and after the incident
Paritosh was beaten by the local people. That time police
also arrived at their locality but he did not lodge the ejahar.
05. PW-3, is the victim. Before recording her
statement her veracity was tested by the learned court
below. She stated that she knows Paritosh Sen of their
locality and he used to visit their house and she used to call
him as 'Paritosh Mama'. The victim further stated that the
accused would often tell her to suck his private organ and
used to come to her house when her mother could go
outside the house for some other works. One day her
mother was not present in the house and at that time the
accused came to their house and removed her panty.
Meanwhile, her mother arrived in the house and the accused
fled away. On the following day in the noon after her bath
was over that time her mother asked her as to what
Paritosh had done with her on the previous day then she
narrated the entire incident to her. She could not say as to
whether she was produced to the court or to the police. But
she did not give any statement. That time being produced
by the prosecution She identified her two signatures on the
164 statement recorded by Magistrate which were marked
as Exbt.4 series and she identified the accused appellant.
Nothing came out relevant during the cross-examination.
06. PW-4 Laxmi Sarkar deposed that Babaul Sahani
is the husband of her daughter and victim is daughter of
Babul Sahani. About 2 ½ years back one day her daughter
Sima Sarkar, wife of Babul Sahani and the victim informed
her that on the previous day in the evening the parents of
victim were not in the house and that time their neighbour
Paritosh Sen attempted to commit rape upon the victim.
When Sima came to the house that time she found the
accused was sitting in the room and the victim was standing
position and her panty was over her frock and on the
following day when the victim was taking bath and on query
and being pressured by her mother the victim told her that
on the previous evening the accused touched her private
part to the vagina of the victim by pressing her mouth and
threatened her not to disclose the same to anybody
otherwise he would kill her and accordingly both the
informant and the victim narrated the said fact to her. She
further stated that one day police seized frock and panty of
the victim from the house of Sima Sarkar in her presence
and she signed in the seizure list. The witness identified her
signature in the seizure list on identification the same was
marked as Exbt.1/1.
During cross-examination she stated that she
was not examined by police concerning the incident except
her relationship with the victim. Nothing more came out
relevant from her cross-examination.
07. PW-5 Pushpa Sahani deposed that Babul Sahani
is her son and they are residing in the same but in separate
mess. In the year 2016 one day wife of Babul Saha namely
Sima Sarkar informed that about three days back the
accused Paritosh Sen had raped daughter of Babul Sahani in
the hut of Babul, but she had no personal knowledge about
the said incident. During cross-examination she stated that
the victim tell her about the incident.
08. PW-6 Bikram Sahani deposed that Babul Sahani
is his elder brother. They are residing in the same house but
in separate mess. About 2 ½ years back one day in the
evening when he returned back to home that time she
found Sima Sarkar wife of Babul and other inhabitants of
their house were discussing that on that day in the morning
the accused Paritosh had raped daughter of Babul Sahani.
During cross-examination he stated that he did not say to
the police that on the day of incident he heard the said fact
from the victim.
09. PW-7, Dr. Ashim Debbarma deposed that on
11.06.2016 was posted as Medical Officer of IGM Hospital,
Agartala and he examined the victim girl who was identified
Constable Sikha Roy Choudhury and in course of
examination he did not find any external injury on the
person of the said victim and there was also no sign of
injury either external or internal in her vagina. Her hymen
was intact. Thereafter he opined that as per his clinical
findings the act of rape neither can be confirmed nor can be
ascertained. He also collected vaginal swab(dry and wet)
urine sample, nail cutting sample of said girl and then he
sent those items to State Forensic Science Laboratory,
Narsingarh. After that he prepared his preliminary report of
examination and he identified the report which contains two
signatures and on identification report was marked as
Exbt.5 and the signature of the witness marked as Exbt.5/1
series. He further stated that after the forensic examination
was produced before him by police and on perusal of the
same he finally opined that in this case occurrence of rape
could not be established or excluded conclusively. He
identified the final report marked as Exbt.6 and the
signature marked as Exbt.6/1. He was declined to cross-
examination by the accused-appellant.
10. PW-8, Dr. Subhankar Nath deposed that on
20.07.2016 he was posted as Deputy Director, DNA Typing
Division, SFSL, Narsingarh and on the same day their office
received one sealed parcel containing following six exhibits
in connection with West Agartala Women P.S. Case No.47 of
2016:
Exbt.A -White colour frock having mud like stain at lower portion said
to be of victim.
Exbt.B- One yellow colour gani pante (inner) said to of the victim.
Exbt.C- Wet vaginal swab of the victim.
Exbt.D- Dry vaginal swab of the victim.
Exbt.E- Two numbers nail cutting of the victim.
Exbt.F- Blood stain gorge said to be the blood sample of Paritosh Sen.
He examined those items in his DNA Division
from 21.07.2016 to 11.08.2016 and opined that:
1.The Seminal stain/spermatozoa of human origin was not detected in
the exhibits marked as Exbt.'A' 'B', 'C', 'D' & 'E'.
2.Blood stain was detected in the exhibit marked 'F'.
3. Blood stain was not detected in the exhibits marked 'A', 'B', 'C' , 'D'
& 'E'.
He further stated that as seminal stain/blood
stain was not detected in the exhibits marked 'A', 'B', 'C', 'D'
and 'E' blood grouping and DNA profiling of control blood
sample of accused was dispensed with. He identified the
report and on identification the same was marked as Exbt.7
and the signature marked Exbt.7/1 series.
11. PW-9 Upasana Debbarma is the I.O. who after
completion of investigation laid chargesheet against the
accused-appellant. She identified the signature and
handwriting of Paramita Saha on the margin of FIR marked
as Exbt.3/1 and identified the printed FIR form which was
marked as Exbt.8. She identified the hand sketch map with
index marked Exbt.9/1 and 9/2. She identified the seizure
list dated 11.06.2016 marked Exbt.1/2. She also identified
the seizure list dated 11.06.2016 which was marked
Exbt.2/2 and identified the seizure list dated 12.06.2016 in
respect of collection of blood sample which was marked as
Exbt.10. She further deposed that she had sent the victim
to the court for recording her statement and she examined
the witnesses.
During cross-examination she stated that she did
not cite Dr. Jyotika Debbarma and Dr. Ashim Debbarma as
witness in this case and also did not cite Dr. Subhankar
Nath as witness in this case and the victim was a school
going child. Her birth certificate was not available. As such
she did not try to collect birth certificate and also she did
not try to collect that her ossification test for ascertaining
her age and also stated that on the basis of appearance of
the victim she presume that she was minor. She did not cite
SI Paramita Saha as witness in this case.
These were the sum and substance of the evidence on
record of the prosecution.
Heard both sides.
12. In course of hearing of argument Ms. R.
Majumder, Learned counsel appearing for the appellant
stated that the prosecution in this case has failed to prove
that the victim to sustain conviction against the appellant
under POCSO Act because according to Learned counsel for
the appellant the I.O. in course of her examination very
specifically stated that during investigation she did not
collect the birth certificate nor alleged for any ossification
test of the victim rather considering the face of the victim
she came to the opinion that the victim was a minor and
furthermore according to Learned counsel from the
appellant that medical evidence on record of the prosecution
and also the scientific report it was clearly established that
there was no sign of any forceful rape or vaginal penetration
of the victim and there was no evidence on record in respect
of sexual assault but the learned court below did not
consider the same and held the appellant to be guilty for the
alleged charge. Reliance have been placed on the evidences
of PW-3, the victim (the name is withheld for protecting her
identity), the medical evidence of PW-7, Dr. Ashim
Debbarma, PW-8, Dr. Subhankar Nath and the Exhibits.7
and prayed for allowing the appeal and set aside the order
passed by the Court below.
13. On the other hand, Learned Addl. P.P. Mr. S.
Ghosh submitted that there was no room to disbelieve the
evidence on record of the prosecution and the learned court
below rightly convicted the appellant in this case and urged
for dismissal of this appeal upholding the order of conviction
and sentence awarded by the learned Trial court.
14. We have gone through the evidence on record
although in course of examination the parents of the victim
by their evidence tried to implicate the appellant with the
alleged commission of offence but on perusal of the
evidence of the victim it is clear that there was no evidence
of any commission of rape upon the victim by the appellant
nor he made any sexual assault upon the victim.
Furthermore, the medical evidence also did not support the
case of the prosecution because the medical examination
report as well as the report of SFSL clearly indicated that
there was no sign of any vaginal penetration or sexual
assault upon the victim and prosecution in this case could
not adduce any documentary evidence showing the actual
age of the victim. Situated thus, on the face of evidence on
record there is no scope to presume the appellant to be
guilty with the alleged charges. Since, the offence against
the accused has not been established or attracts, the
provisions under POCSO Act under which the appellant has
been convicted and he has already undergone an
imprisonment of more than four years, this Court considers
that it is a case which needs to be rectified and accordingly,
the order is set aside and the accused is acquitted from the
charge and shall be released. As such, in our considered
view learned court below could not appreciate the evidence
on record properly and convicted the appellant for which the
present appellant is liable to be acquitted from the charge
on benefit of doubt which hereby do. Accordingly, the
conviction and order of sentence and judgment dated
20.01.2020 passed by Special Judge, West Tripura, Agartala
in connection with Case No. Special (POCSO) 35 of 2016 is
hereby set aside and the accused appellant is hereby
acquitted from the charge on benefit of doubt. He shall be
released from the custody henceforth if he is not wanted in
connection with any other case.
15. In the result, the appeal is allowed to the extent
as indicated above.
Send down the LCRs along with a copy of this
order.
JUDGE JUDGE
MOUMITA DATTA DATTA
Date: 2024.07.23 13:26:32 +05'30'
Moumita
