Convict vs The State Of Tripura
2024 Latest Caselaw 1228 Tri

Tripura High Court

Convict vs The State Of Tripura on 23 July, 2024

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                   HIGH COURT OF TRIPURA
                         AGARTALA

                     Crl.A.No.18 of 2023
                           along with
                    Crl.A.(J)No.38 of 2023


in Crl.A.No.18 of 2023

Sri Biki Das,
son of Sri Manik Das,
resident of Barjala, Bairagi Tila,
P.S. West Agartala, District-West Tripura


                                            ..........Convict-Appellant(s)
                              Versus
The State of Tripura

                                                 ..........Respondent(s)

For Appellant(s) : Mr. Samar Das, Adv.

For Respondent(s) :   Mr. Raju Datta, P.P.
Date of Judgment
& Order           :   23.07.2024
Whether fit for
reporting         :   NO

_____________________________________________________

in Crl.A.(J)No.38 of 2023

Sri Debabrata Das, son of Late Samir Das, resident of South Pulinpur, Teliamura, P.O. & P.S. Teliamura, District-Khowai Tripura

.......... Appellant(s) Versus The State of Tripura

..........Respondent(s)

For Appellant(s) :

Mr. D.J. Saha, Adv.

Ms. Sarama Deb, Adv.

Ms. Suchitra Ghosh, Adv.

For Respondent(s) : Mr. Raju Datta, P.P. _____________________________________________________

HON'BLE MR. JUSTICE T. AMARNATH GOUD HON'BLE MR. JUSTICE BISWAJIT PALIT

Judgment & Order(Oral) [T. Amarnath Goud, J]

Both the appeals are taken up together for hearing and

decision as both the appeals are filed arising out of the same

judgment, although the setences imposed in both the appellants are

different.

2. Heard Mr. Samar Das, Learned counsel appearing for the

appellant as well as Mr. Raju Datta, Learned P.P. appearing for the

State-respondent in connection with Case No. Crl.A.No.18 of 2023.

Further, we have also heard Mr. D.J. Saha, Learned counsel appearing

for the appellant as well as Mr. Raju Datta, Learned P.P. appearing for

the State-respondent in connection with Case No. Crl.A.(J)No.38 of

2023.

3. Before coming to the conclusion of this appeal, let us discuss

about the subject matter of the prosecution. The case of the

prosecution before the Learned Trial Court is that on the basis of a

written complaint lodged by the informant Srinibash Sutradhar on

12.06.2020 to the West Agartala, Women P.S. with the allegation that

on 10.06.2020 his minor victim girl (name withheld) let the house in

the morning at about 8.30 a.m. to go to her private tutor's house at

Orient Chowmohani. Thereafter, at about 12 p.m. one friend of the

victim namely Nikita Deb wanted to know about the victim from the

wife of the informant over telephone and in turn the wife of the victim

told her that the victim went to the house of her tutor. Thereafter, said

Nikita informed his wife that two boys namely Debabrata Das and Biki

Das came to meet the victim girl and then they went out elsewhere.

Lateron, the informant returned back to his residence at about 2 p.m.

after completion of his work when his wife told him that the victim till

then did not returned back to home. On the basis of information of

said Nikita i.e. the friend of the victim they called one Biki Das to come

to their house and accordingly Biki came but he could not give any

proper reply. Further, according to the informant, said Biki asked

Debabrata over telephone as to whether victim was with him or not

when said Debabrata told him that he has taken away the victim girl.

After that, the informant and his wife created pressure upon the

accused Biki Das to find out the victim daughter and then Biki Das

gave them the address of accused Debabrata Das and left the place.

Thereafter, on search, the informant and his wife went to the house of

of accused Debabrata Das at Teliamura but the family members of

accused Debabrata did not cooperate with them. Accordingly, they

started searching vigorously for the victim girl but failed. In the ejahar

it was also mentioned that the accused Debabrata might have

kidnapped her daughter and accused Biki Das abetted him. Hence, he

laid the FIR. The delay was explained in the FIR regarding searching of

the victim daughter. On the basis of written information West Agartala

Women P.S. Case No.2020/WAW/043 dated 12.06.2020 under

Sections 366/109/34 of the IPC and the case was endorsed to I.O. for

investigation and the I.O. after completion of investigation laid charge-

sheet against both the appellants before the Court for prosecution.

Thereafter, cognizence of offence was taken and the Learned Trial

Court after hearing both the sides framed charge under Section

366/34 of IPC read with Section 376(1) of IPC and Section 4 of POCSO

Act against the appellant Debabrata Das and also framed charge under

Section 366 read with Section 109 of IPC.

4. To substantiate the charge prosecution before the Learned

Trial Court adduced in total 8(eight) numbers of witnesses and relied

upon some documents which were marked as Exhibits in this case and

finally, after completion of trial, Learned Trial Court below found both

the appellants to be guilty and sentenced the convict Debabrata Das

under Section 4 of POCSO Act to suffer rigorous imprisonment for

10(ten) years and to pay fine of Rs.20,000/- in default to suffer simple

imprisonment for 2(two) months and to suffer rigorous imprisonment

for 3(three) months and to pay fine of Rs.10,000/- for the offence

punishable under Section 366 read with Section 34 of IPC, in default to

suffer simple imprisonment for 1(one) months and it was further

ordered that both the sentences shall run concurrently. No sentence

against the said appellant was imposed under Section 376(1) of IPC

and the appellant Biki Das was sentenced to suffer rigorous

imprisonment for 3(three) years and to pay fine of Rs.10,000/- for the

offence punishable under Section 366 of IPC read with Section 34 of

IPC in default to suffer simple imprisonment for 1(one) month.

Challenging that judgment, both the appellants have preferred appeal

before the High Court.

5. In course of hearing of argument Mr. D.J. Saha, Learned

counsel appearing for the appellant in Crl.A.(J)No.38 of 2023 fairly

submitted that the prosecution has miserably failed to prove the

charge levelled against the appellant, Debabrata Das under Section

366 of IPC or under Section 4 of POCSO Act but Learned Trial Court

below misconstrued the evidence on record passed an erroenous

judgment for which the interference of the Court is required. It was

further submitted that the victim had love affair with the appellant

Debabrata Das and from her deposition before the Learned Trial Court

and also from the statement made before the Magistrate it will

transpire that she made contradictory statements, so, no charge could

made out against the said appellant but the Learned Trial Court below

without proper appreciation of evidence on record wrongly found him

guilty and imposed punishment.

6. On the other hand, Mr. Raju Datta, Learned P.P. appearing

for the State-respondent in respect of said appellant namely

Debabrata Das submitted that there was no scope to disbelieve the

evidence on record of the prosecution in respect of the charges framed

against the appellant. So, the Learned Court below rightly and

reasonably found the appellant to be guilty and convicted him thereon.

So, according to Learned P.P., there is no material in the appeal filed

by the appellant and urged for dismissal of the appeal upholding the

judgment and order of sentence and conviction passed by the Learned

Trial Court.

7. In respect of another appeallant namely Biki Das, Learned

counsel Mr. Samar Das has submitted that from the evidence on

record it is clear that the prosecution has miserably failed to prove the

charge levelled against the appellant under Section 366/34 of IPC but

the Learned Court below failed to appreciate the evidence on record

properly and convicted him without any basis for which Learned

counsel urged for interference of this Court by allowing the appeal and

also by setting aside the judgment and order of sentence and

conviction.

8. Per contra, Mr. Raju Datta, Learned P.P. appearing for the

State-respondent submitted that as already stated by him that the

Learned Court below framed charges seperately against both the

appellants and after considering the evidence on record of the

prosecution found the appellant to be guilty and both the appellants

before the Learned Court below by the trend of cross-examination

could not raise any doubt to shatter the evidence on record of the

prosecution and thus, Learned P.P. urged for dismissal of this appeal

filed by the appellant and prayed for upholding the order of sentence

and conviction imposed by Learned Trial Court.

Heard both the sides.

Considered.

9. Now before coming to the conclusion let us discuss the

evidence on record of the prosecution.

10. PW-1, Srinivash Sutradhar is the informant and he is also

the father of the alleged victim of this case. According to him, on

12.06.2020, he raised one written complaint to accused persons

namely, Biki Das and Debabrata Das. According to him, on

10.06.2020, his daughter went to take private tuition at about 8.30

am at Orient Chowmohani but did not return home till 2.00 p.m. and

when she returned back to home at 2.00 p.m. that time his wife

informed him that their daughter did not returned back home from the

private tuition. After that, they called one Biki Das to inquire about his

daughter who thereupon, called another accused Debabrata Das who

replied that the victim was with him at Teliamura. Accordingly, the

informant along with his wife went to Teliamura PS whereupon the

maternal uncle and sister of the accused appellant Debabrata Das

were also present in the PS. At the PS we did not find our victim

daughter, then they returned back to home. On 12.06.2020, he laid a

written complaint before the West Agartala Women PS against the

accused persons. Acording to him, his ejahar was scribed by one

person sitting at the PS but he cannot recollect the name of that

person. He put his signature on the FIR and identified his signature

marked Exhibit-1/1. He further stated that after lodging of the ejahar,

police seized the original birth certificate of his daughter being

produced by him and the police obtained his signature on the seizure

list which was marked as Exhibit-2/1 on identification. According to

him, the date of birth of his daughter was 23.04.2003 and identified

the birth certificate marked as Exhibit-3. Later on, on 16.06.2020,

police recovered his victim-daughter and the police of West Agartala

Women PS informed him about the recovery of his daughter and

handed over the victim-daughter to him. Thereafter, on query with his

daughter, she told them that the accused Debabrata Das kidnapped

her with the aid of another accused Biki Das.

11. During cross-examination he stated that the distance of

Ramnagar TOP his house was about 1 km. He further stated that after

recovery of the victim she was produced before the Magistrate

whereupon her statement was recorded. He also could not say as to

whether his daughter i.e. the victim stated before the Magistrate that

on 10.06.2020 one Madhusudhun Das, the maternal uncle of the

accused Debabrata Das informed him over telephone that the victim

was lying in his house and to take her back but he denied or not. He

further stated that on 11.06.2020 he went to Teliamura P.S. He

further stated that one Nikita Debnath is the close friend of his

daughter and she used to visit her home prior to the incident. He also

could not say as to whether his daughter stated before the Magistrate

that on 10.06.2020 she over telephone requested his wife to take her

back when her mother gave the phone to Nikita Debnath who

thereupon informed the victim that his wife asked her to go with

anybody whereever she wants or not. He further stated that prior to

12.06.2020 he did not lodge any missing diary or written complaint

either to the Ramnagar TOP, West Agartala Women P.S. or Teliamura

P.S. He was confronted with the statement that he stated to police

that he along with his wife went to Teliamura P.S. whereupon the

maternal uncle and the sister of Debabrata Das were present and at

present, they did not find the victim daughter but this portion of

statement was not found in the statement recorded by IO under

Section 161 of Cr.P.C. He also could not as to whether his daughter

took shelter in the house of Madhusudhun Das or not. He admitted

that on 16.06.2020 he got one telephonic information from Teliamura

P.S. about the alleged recovery of his victim daughter. He also stated

that his sister's house is situated at Teliamura. He further stated that

in the ejahar he did not mention the name of the tutor and the

location of the residence of the tutor. Further stated that accused Biki

Das is his next door neighbour.

12. PW-2, the victim stated that her father lodged the instant

case on 12.06.2020. On 10.06.2020 at about 11.30 a.m. she went to

attend her private tution class at Ker Chowmohani that time the

accused persons i.e. the present appellants kidnapped her and took

her to the dwelling house of Debabrata Das at Teliamura and

thereupon he snatched away her mobile phone due to which she failed

to communicate with her parents. Thereafter, the accused appellant

Debabrata Das committed forceful intercourse with her in his dwelling

house. On 12.06.2020 the police of Telimura P.S. recovered her from

the house of the maternal uncle of the accused Debabrata Das and

handed her over to the West Agartala Women P.S. wherefrom her

parents took her to their dwelling house. During investigation, one day

she was produced before the Magistrate when her statement was

recorded. She identified her signatures on the statement marked

Exhibit-4/1 series. She further stated that one day in connection with

this case, she was sent to IGM Hospital, Agartala for her medical

examination where her medical examination was done. Her signature

on the consent form was marked as Exhibit-5/1. She also stated that

her date of birth is 23.04.2003.

13. During cross-examination she stated on 17.06.2020 she was

produced before the Magistrate when her statement was recorded and

on the day of recording, she was under threat/pressure from the

accused persons and therefore she could not disclose the facts exactly

what she disclosed before the Court. She further stated that she did

not stated before the Magistrate that the accused Debabrata

threatened her. She further stated that her statement was recorded

before the Magistrate as per her version and again she stated that she

did not say to Magistrate that she was kidnapped by accused persons

or she did not say to Magistrate that she was kidnapped from Ker

Chowmohani. She was confronted with the statement that she was

unable to recollect as to whether she stated to police that the accused

appellants kidnapped her or not but on drawing attention to her

statement recorded by IO under Section 161 of Cr.P.C. the same

statement was not found. She could not say at what time the accused

kidnapped her. She further stated that on the day of incident she was

17+. She further stated that accused Debabrata was known to her and

she had conversation with him over telephone. Again she stated that

she did not say to Magistrate accused Debabrata was not inclined to

take her with him and she stated to Magistrate that her mother told

her to accompany with the accused Debabrata Das and she and her

father will not take any information about her. She further stated that

since 16.06.2020 to 30.06.2021 she never disclosed the fact to the

police or Magistrate that the accused threatened her not to disclose

the actual fact. She again stated before the Magistrate on 10.06.2020

when she reached at Teliamura in the house of Debabrata's uncle that

time the uncle informed her father over telephone to take her back

and on 12.06.2020 she herself called upon her father to take her back

from the house of Debabrata. She further stated to police that she had

lover affair with the accused Debabrata for eight months prior to

incident. She further admitted to police that she loved Debabrata very

much.

14. PW-3, Smti. Kabita Das the mother of the informant. She

deposed that on 12.06.2020 her husband lodged the case against the

accused namely Debabrata Das and Biki Das. On 10.06.2020 the

accused kidnapped her daughter from Ker Chowmohani when she went

to attend her private tution. She received the information from one

Nikita about 2.00 p.m. and after that she called Biki Das who is her

neighbour and enquired the matter who thereupon called Debabrata as

to whether victim daughter was with him or not. That time Debabrata

replied that the victim was with him and after taking the address of

the house of Debabrata Das through Biki, they went to Teliamura on

11.06.2020 to the house of Debabrata Das. But the relatives of the

accused Debabrata Das did not co-operate with them and thereafter,

on 16.06.2020, police informed that their victim-daughter was

recovered and take her back from the PS. Accordingly, she along with

her husband went to the West Agartala Women PS and took the victim

daughter back to their residence. She further stated that after

recovery of her daughter, she disclosed that the accused Debabrata

forcefully kidnapped her. Along with the victim- daughter she went to

IGM Hospital for medical examination and prior to medical examination

she consented for the same and signed in the consent form and

identified in the consent form stands marked as Exhibit-5/2. She

further stated that during investigation, police seized one original birth

certificate of her daughter by preparing a seizure list and obtained her

signature as a witness. The witness identified her signature on the

seizure list stands marked as Exhibit-2/2.

15. During cross-examination, the witness was confronted with

the statement that she stated to police that on 10.06.2020, the

accused appellants kidnapped her daughter from Ker Chowmohani but

on drawing attention the said statement was not found in her

statement recorded by IO under Section 161 of Cr.P.C. She was

further confronted with the statement that she received the

information about her daughter on the alleged day from Nikita at 2.00

p.m. but that portion of statement was also not found to the

statement of witness recorded by IO. She further stated that she did

not say to IO that on 11.06.2020 she along with her husband went to

Teliamura in the house of accused Debabrata Das but they did not find

their daughter in the house of accused Debabrata. She further stated

that she did not say to IO that after recovery of her daughter she

disclosed that the accused forcefully kidnapped her. She also did not

say to IO the name and address of the tuitor where her daughter used

to take private tuition. She further stated that her husband is a day

labourer.

16. PW-4, Dr. Subhankar Nath deposed that on 14.09.2020, he

was posted as Dy. Director, SFSL, Tripura. On that day the O/o. The

Director, SFSL, received one sealed parcel in connection with West

Agartala Women PS Case No.2020/WAW/043, dated 12.06.2020 under

Sections-366/109/34 of IPC which was forwarded by Dy.SP(CAW),

Agartala, West Tripura vide Memo No.896/A/SP(CAW)/AGT/2020

dated 08.09.2020. The Director endorsed me the exhibits along with

papers for examination and opinion. The period of examination was

14.09.2020-22.09.2020.

The sealed parcel contain the following 8 exhibits :-

1) Exhibit-A, Wet vaginal Swab of victim girl.

2) Exhibit-B, Dry Vaginal Swab of victim girl.

3) Exhibit-C, pubic hair sample of victim girl.

4) Exhibit-D, scalp hair sample of victim girl.

5) Exhibit-E, nail sample of victim girl.

6) Exhibit-F, blood sample of victim girl.

7) Exhibit-G, urine sample of victim girl.

8) Exhibit-H, Saliva sample of victim girl.

The details of parcel of exhibits mentioned in page Nos.3 and 4 of the

present report.

Biological Examination:-

a) Blood Examination: The exhibits marked-A, B, D, E, F and G were examined under different light sources, TMB Test,

Phenolphthalein Test and Takayama Test for detection of blood.

b) Semen/Spermatozoa Examination: The exhibits marked A, B, C, E and G were examined by visual examination under different light sources, acid phosphatase and microscopic examination for detection of semen stain/ spermatozoa of human origin.

c) Hair Examination: The exhibits marked C and D, were examined by visual examination and microscopic examination for hair.

d) Saliva Examination: The exhibit marked H, was examined by salivary amylase test for detection of saliva.

Results:-

1) Blood stain was not detected in the Exhibits marked-A, B, D, E and G.

2) Blood stain of human original was detected in the Exhibit marked-F.

3) Seminal stain/spermatozoa of human origin was not detected in the Exhibits marked-A, B, C, E and G.

4) The Exhibit marked - C was cut human pubic hair and all the hairs are morphologically and morphometrically similar in nature.

5) The Exhibit marked - D was cut human scalp hair and all the hairs are morphologically and morphometrically similar in nature.

6) Saliva stain was not detected in the Exhibit marked-H.

Since, blood stain / seminal stain was not detected in the

victim's exhibits, hence, the DNA Profiling of controlled blood sample

of victim (Exhibit- F) has been dispensed with.

This is the report submitted by him in 4 sheets which on

identification is marked as Exhibit-6 and my signatures thereon are

marked as Exhibit-6/1 series.

He was declined to cross-examination by the appellants.

17. PW-5, Smti. Monti Marak is a seizure witness. She deposed

that on 17.06.2020 whe was posted as Women Constable of Police at

West Agartala Women PS. On that day, she produced vaginal swab

(wet and dry), pubic hair, scalp hair, nail, blood sample, urine sample,

saliva sample of the victim girl (name withheld) to the IO namely,

Smti. Sampa Das, WSI of police. The IO on receipt of the said samples

from her and obtained her signature on the seizure list dated

17.06.2020 which on identification by the witness stands marked as

Exhibit-7/1.

18. She was declined in the cross-examination by the accused.

19. PW-6, Dr. Manashree Debbarma deposed that on 17.06.2020

she was posted as a Medical Officer on duty to the Department of

Obstetrics and Gynecology, IGM Hospital, Agartala. On that day, she

conducted medical examination of the victim in connection with West

Agartala Women PS Case No.2020/WAW/043, U/S 366/109/34 of IPC.

Upon examination, she gave the report that 'In my opinion the act of

rape neither can be confirmed nor can be ascertained. Hymen is

resembling that of married, nulliparous woman'. The said report of the

victim girl as identified by the witness is marked as Exbt. 8 as a whole

and the signatures of the witness over the same are marked as Exbt.

8/1 and 8/2 respectively.

To court: Nulliparous woman means a woman who is married but who

has not given birth to any child.

20. During cross-examination she deposed that after

examination of the victim she opined that she has sexual relationship

in the past and the act of rape could not been ascertained from my

clinical examination. She further stated that Nulliparous woman is

used for a woman who had elective abortion or pregnancy loss. She

also admitted that in the report she had mentioned that the victim

previously knew the accused person.

PW-7, Smt. Ritu Das deposed that on 17.06.2020 she was posted as

Woman Constable of police at West Agartala Women PS. On that date,

the IO of this case seized several swabs and other samples of the

victim girl by preparing a seizure list and obtained her signature and

she identified her signature marked as Exbt. 7/2.

21. During cross-examination she deposed that on the basis of

GD Entry they performs their duty.

22. PW-8, Smti. Sampa Das is the IO who laid charge-sheet

against the appellants. She deposed that on 12.06.2020 she was

posted as WSI of police in the West Agartala Women PS. On that day,

this case was registered by OC on the basis of the FIR laid by one Sri

Srinivash Sutradhar. She identified the registering note along with the

signature of Smti. Mina Denbbarma i.e. the then OC on the written FIR

which was marked as Exhibit-1/2. The printed FIR form filled in by

Smti. Mina Debbarma as identified by the witness, marked as Exhibit-9

as a whole and the signature of Smti. Mina Debbarma as identified by

the witness over the same marked as Exhibit-9/1. The case was

endorsed to her. During examination, she recorded the statement of

witnesses under Section 161 of Cr.P.C. She seized the original birth

certificate of the victim girl by a seizure list and identified the seizure

list marked as Exhibit-2 and her signature marked. She further stated

that she produced the victim to the Court for recording her statement

under Section 164(5) of the Cr.P.C. by the Learned Magistrate. On the

same date, she arranged for the medical examination of the victim girl

from IGM Hospital, Agartala. She also send the vaginal swabs and

other samples by preparing a seizure list and identified the seizure list

marked as Exhibit-7, her signature marked as Exhibit-7/3. She

identified the hand sketch map with separate index marked Exbt. 10

as a whole and the signature of the witness over the same is marked

Exbt. 10/1.The separate index attached to the hand sketch map is

marked Exbt. 11 as a whole and the signature of the witness over the

same is marked as Exbt.11/1. She further stated that on 14.09.2020,

the seized samples were sent to the SFSL, Narsingarh for forensic

examination. On 21.09.2020, she collected the medical report of the

victim girl from the IGM Hospital, Agartala. She also collected the SFSL

report and after completion of investigation she collected the Potency

Report of accused from the AGMC & GBP Hospital, Agartala.

23. During cross-examination, she stated that in the statement

of the victim girl there was no allegation against the appellant Biki

Das. She further stated that in the statement of the victim girl

recorded by the Learned Magistrate under Section 164(5) of the

Cr.P.C, there was no allegation against the accused Debabrata Das @

Bura for the ingredients of under Section 376(3) of the IPC and

Section 4 of the POCSO Act. She further stated that there is no eye-

witness of the alleged kidnapping of the victim girl from Ker

Chowmohani under West Agartala P.S. The distance between Ker

Chowmohani, Agartala and the house of the accused Debabrata Das at

Teliamura is about 65 kms. She further stated that during

investigation, nothing came to her by what conveyance the victim girl

was taken from Agartala to Teliamura. She did not verify any CCTV

Footage at Ker Chowmohani. She did not record any statement that

the accused Biki Das instigated or assisted Debabrata Das nor she

recorded the statement of private tutor of the victim girl. During

investigation it has not come out to her that the victim girl was

kidnapped within the span of 0830 hours to 1100 hours. The victim

also did not tell her the exact time of her alleged kidnapping. In the

column No.8 of the printed FIR form, the reason for delay was written

as 'due to search' but during investigation nothing came out in this

regard. She did not seized the mobile phone of the accused Biki Das

nor she verified the mobile phone call details of the said accused.

During investigation, she did not find any materials under Section 109

of IPC against the accused Biki Das. She also did not arranged for

medical examination or ossification test of the victim girl regarding

determination of age nor she examined the issuing authority of the

birth certificate, nor she seized any school certificate of the victim girl.

She further stated that in the statement of the victim recorded under

Section 164(5) of the Cr.P.C the victim girl has stated that on

10.06.2020, her mother told her friend namely, Nikita Deb that she

should not return to her house and she (victim girl) and she shall go

along with accused Debabrata Das nor she recorded the statement of

Nikita Deb. She further stated that the victim in course of her

statement before the Magistrate stated that the maternal uncle of the

accused asked her father over telephone to take her back but her

father did not make any call nor make any respond nor take her back.

During investigation she did not seize any kind of vehicle. She also did

not examine Madhusudhan Das who handed over the victim girl to

Teliamura PS and the victim also did not tell her that the accused

Debabrata and accused Biki Das kidnapped her. The victim also did not

tell me the exact time when she was actually kidnapped as well as the

spot also. During investigation, it has not come out that the accused

persons threatened the victim girl not to disclose the actual fact to

anyone.

24. The appellant Debabrata Das in course of his examination

under Section 313 of Cr.P.C. pleaded as innocence and desired to

adduce his witnesses in support of his defence. Accordingly, on his

behalf one Madhusudhan Das appeared before the Court as D.W.1. He

deposed that about two and half years back one day at about 2/ 2:30

pm, the victim girl (name withheld) came to their house and inquired

from him about the house of the accused Debabrata Das. Then he

asked the victim as to why she wants to go to the house of Debabrata

to which she replied that her mother has asked her to go to the house

of the accused Debabrata Das. Then he asked her to give the phone

number of her father. After that she contacted with her father over

telephone who handed over the telephone to his wife i.e, the mother

of the victim. When the mother of the victim told him that she has

asked the victim to go to the house of Debabrata. Then they contacted

the local MLA when she to look into the matter. During evening hours

the local MLA was contacted when she asked to bring the victim girl at

Teliamura P.S and accordingly they brought the victim girl to the

Teliamura P.S and handed over her to Teliamura P.S.

25. During cross-examination, he stated that that the distance

between his house and the house of the accused is about 5 mins.

walking.

26. These are the sum and substance of the evidence on record

of the prosecution as well as the accused appellants before the

Learned Court below.

27. From the evidence on record, it appears to us that although

the prosecution before the Learned Court below brought the charge

against the appellant namely Biki Das under Section 366 read with

Section 34 of IPC but from the entire evidence on record of the

prosecution specifically the evidence of the victim and the evidence of

the IO it is clear that the prosecution could not place any material

evidence before the Learned Trial Court showing involvement of the

appellant Biki Das under Section 366 read with Section 34 of IPC but

the Learned Court below without appreciating the evidence on record

properly found them guilty.

28. In course of hearing of argument, Learned P.P. representing

the prosecution also could not place any material before this Court to

sustain the charge against the said appellant, Biki Das. As such, in our

considered view the appellant Biki Das requires to be acquitted from

the charge levelled against him and he be set at liberty henceforth.

Thus, the appeal filed by the appellant Biki Das is allowed and the

judgment and order of conviction and sentence imposed by the

Learned Trial Court against the said appellant under Section Section

366 read with Section 34 of IPC is accordingly set aside. If the said

appellant convict is in custody so he be released from the custody

henceforth, if he not wanted in connection with any other case.

29. Now, in respect of another appellant namely Debabrata Das

we have meticulously gone through the evidence on record.

Admittedly, Learned Trial Court below framed charge against the said

appellant under Section 366/376(1) of IPC and also under Section 4 of

the POCSO Act. But from the evidence on record of the prosecution

specifically from the evidence on record of the informant, his wife and

also the victim it appears that the prosecution before the Learned Trial

Court below could not place any material showing the implication of

the said appellant under Section 366 of IPC that the present appellant

kidnapped the victim on the alleged day and time because the victim

(the name withheld) who in course of her examination specifically

admitted that she did not say to IO that she was kidnapped by the

said appellant. Even there is no evidence on record from which place

and how the said victim was kidnapped by the said appellant, just on

the basis of some omnivous statement no charge under Section 366 of

IPC could sustain against the appellant. In this regard we would like to

refer herein below the relevant provision of Section 366 of IPC which

provides as under :

"366. Kidnapping, abducting or inducing woman to compel her marriage, etc. Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid]."

From the aforesaid provision of law it appears to us that to

sustain any conviction against any accused the prosecution should

prove that the accused abduct an woman with intend that she may be

compelled or knowing it to be likely or she will be compelled to marry

any person against her will or in order that she may be forced or

seduced to illicit intercourse or knowing it to be likely that she will be

forced or seduced to illicit forceful intercourse and until and unless the

prosecution proves that abduction is the purpose for the purpose as

mentioned in Section 366 there is no scope to held to the accused to

be guilty for the said charge.

30. Here from the evidence on record nowhere we find that there

was intention of abduction by the appellant to kidnap the victim on the

alleged date and time. Furthermore as already stated prosecution in

this case could not prove from where and how and when the alleged

victim was kidnapped by the appellant Debabrata Das and furthermore

the victim herself specifically admitted that she did not disclose

anything to the IO during investigation nor to the Magistrate that the

said appellant kidnapped her on the alleged day. Thus, it appears to us

that the Learned Court below erreneously convicted the said appellant

under Section 366 of IPC.

31. Now in respect of other charges framed against the appellant

under Section 376(1) of IPC and under Section 4 of the POCSO Act it

appears that from the evidence of the victim who in course of her

examination-in-chief that the appellant forcefully committed rape upon

her but during cross-examination she specifically stated that she did

not say to the Magistrate that the said appellant kidnapped her

although, she made statement before the Magistrate that she was

being threatened by the appellant. But again she stated that she did

not say to Magistrate that the accused threatened her. Furthermore,

she stated that her mother stated her to accompany the appellant

Debabrata Das. More so, she specifically stated that during

investigation she stated to police that she had love affair with the

acccused prior to the incident. From the evidence on record of the

Medical Officer we do nodt find any evidence of commission of rape

upon the victim by the present accused. More so, the IO also in course

of her cross-examination specifically stated that in course of

investigation no evidence under Section 376(1) of IPC or under

Section 4 of POCSO Act revealed against the present appellant. More

so from the evidence of DW-1 it is crystal clear that on the alleged day

the victim herself went to the house of the witness Madhusudhan Das

and enquired about the accused Debabrata Das. The prosecution in

spite of cross-examination of the witness could not shatter his witness.

32. Thus, from the evidence on record as discussed above we do

not find any material showing implication of the appellant Debabrata

Das with the alleged occurrence punishable under Section 366/376 of

IPC or under Section 4 of the POCSO Act. Furthermore, the

prosecution also failed to prove the actual age of the victim girl on the

alleged day to attract the provision provided under Section 4 of POCSO

Act because the issuing authority could not be produced by the

prosecution to substantiate the actual date of birth of the alleged

victim. More so, from the evidence on record what we have discussed

above no where we find any material the present appellant Debabrata

Das on the alleged day of occurrence kidnapped the victim girl and

thereafter forcefully committed rape upon her but the Learned Court

below without proper appreciation of the evidence on record convicted

the said appellant which in our considered view Learned Trial Court

below wrongly decided for which the present appellant is liable to be

acquitted from the charge henceforth on benefit of doubt, which we

hereby do.

33. In the result, both the appeals are allowed. The judgment

and order of conviction and sentence imposed by the Learned Trial

Court below in connection with Case No.Special(POCSO)36 of 2021

regarding the case of Biki Das under Section 366 IPC read with Section

34 of IPC and regarding Debabrata Das under Section 366/376(1) read

with Section 34 of IPC and Section 4 of POCSO Act are set aside. Both

the appellants are acquitted from the charge levelled against them and

be set at liberty. The appellants be released from the custody

henceforth if they are in custody provided they are not connected in

connection with any other case. Their surities are also discharge from

the liability of the bail bond, if any.

With these observations, both the appeals are disposed of on

contest.

Send down the LCR along with a copy of the judgment and

also a copy of this judgment be transmitted to Superintendent,

Kendriya Sansodhanagar Tripura, Bishalgarh, Sepahijala Tripura for

information of the convict-appellants.

                 JUDGE                                              JUDGE






Date: 2024.07.31 10:45:37 +05'30'