Tripura High Court
Sri Krishnadhan Sarkar vs The State Of Tripura on 16 May, 2024
Author: Arindam Lodh
Bench: Arindam Lodh
1
HIGH COURT OF TRIPURA
AGARTALA
Crl. A. (J) 30/2023
Sri Krishnadhan Sarkar, son of late Manindra Sarkar, resident of
Lankamura, Sharma Lunga, P.S. West Agartala, District- West Tripura.
----Appellant(s)
Versus
The State of Tripura, (to be represented by the Ld. Public Prosecutor, The
Hon'ble High Court of Tripura).
----Respondent(s)
For Appellant (s) : Mr. Samarjit Bhattacharjee, Advocate
For Respondent(s) : Mr. S. Ghosh, Addl. PP
Date of hearing & delivery
of Judgment & Order : 16.05.2024
Whether fit for reporting : No
HON'BLE MR. JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S.D. PURKAYASTHA
Judgment & Order (Oral)
(Arindam Lodh,J)
Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the
appellant. Also heard Mr. S. Ghosh, learned PP appearing for the
respondent-State.
2. The convict-appellant has preferred the instant appeal against
the judgment of conviction and order of sentence dated 04.05.2023 passed
by the learned Special Judge (POCSO), West Tripura, Agartala, in
connection with case No. Special (POCSO) 25 of 2019 whereby and
whereunder the appellant was convicted under Sections 376 AB/448/506 of
the IPC and under Section 6 of the Protection of Children from Sexual
Offences (for short 'POCSO') Act, 2012, and sentenced to suffer rigorous
imprisonment for 20 (twenty) years and to pay a fine of Rs. 20,000/- for the
offence punishable under Section 6 of the POCSO Act with default
stipulation, and also to suffer rigorous imprisonment for 6 months and to pay
a fine of Rs.500/- for the offence punishable under Section 448 of the IPC
with default stipulation, and further sentenced to suffer rigorous
imprisonment for 1 year and to pay a fine of Rs.1,000/- for the offence
punishable under Section 506 of the IPC with default stipulation with a
further direction that all the sentences shall run concurrently.
3. The facts in brief, are that, one Swapna Debnath, mother of the
victim (name not disclosed) lodged a complaint on 18.04.2019 to the
Officer-in-Charge of West Agartala Women police station, stating inter alia
that on 17.04.2019 she along with her husband went to bring some articles
from the owner of the house where she used to work as maidservant. At that
time, their 7 years old daughter i.e. the victim, was inside the room and they
kept the front door of the said room under lock and key, but, the back door
was kept open. During their such absence, the accused person entered into
the room through the back door and asked her 7 years old daughter to put off
her clothes and other wearing apparels which she initially tried to resist, but,
thereafter, the accused threatened her and forced her to unrobe her wearing
apparels. Thereafter, the accused first entered his fingers into the vagina and
thereafter penetrated his penis into the vagina of the victim after taking off
his lungi. When the informant and her husband came back to the house, the
victim narrated the entire incident to them. Then, the parents of the victim
informed the said incident to the wife of the accused, and other 2 persons,
namely, Sri Prangopal Sarkar and Smt. Saraswati Sarkar. Prangopal Sarkar
apprised them that he had seen the accused to enter into the room of the
victim. Thereafter, they advised the parents of the victim to lodge a
complaint with the police station.
4. Accordingly, FIR was registered. Investigation was carried out.
During the course of investigation, the Investigating Officer recorded the
statements of as many as 17 witnesses including the Doctor who medically
examined the victim after the incident and the Forensic Expert. After
completion of investigation, having found prima facie evidence the
Investigating Officer submitted charge-sheet. On receipt of the records i.e.
police report, learned Special Judge took the cognizance of the alleged
offence and framed charge under Sections 376(2)(i)/506 of the IPC and
under Section 6 of the POCSO Act, 2012.
5. To substantiate the charge, prosecution examined as many as 17
witnesses including the informant and the victim. At the closure of recording
prosecution evidences, the accused was examined under Section 313 Cr.P.C.
wherein he denied all the incriminating materials surfaced in the evidence let
in by the prosecution witnesses. Thereafter, the accused had adduced
evidences on his behalf and produced DW-1 and DW-2 as defence
witnesses.
6. Having heard argument of learned counsel appearing for the parties,
learned Special Judge (POCSO), West Tripura, Agartala, held the accused
guilty of committing the offence, and convicted and sentenced him under
Sections 376(2)(i)/506 of the IPC and under Section 6 of the POCSO Act,
2012, as aforestated.
Being aggrieved and dis-satisfied with the said judgment of
conviction and order of sentence, the accused-appellant has preferred the
instant appeal before this court.
7. At the very outset, Mr. Bhattacharjee, learned counsel for the
appellant has read over the complaint lodged before the Officer-in-Charge of
the concerned police station. Mr. Bhattacharjee, learned counsel has also
emphasized on the evidence of PW-2, Dr. Pamela Debbarma, who medically
examined the victim after the incident. Mr. Bhattacharjee, has further relied
upon the evidence of the informant (PW-8) and submits that the learned trial
court did not consider the contradictions which are apparent in the evidence
of the prosecution witnesses. Proceeding further, Mr. Bhattacharjee, learned
counsel appearing on behalf of the accused-appellant submits that from the
prosecution case, it appears that after commission of the incident it was
narrated to the informant as well as father of the victim and based on the
statement of the victim, her parents informed the matter to the wife of the
accused as well as to Sri Prangopal Sarkar (PW-12) and Smt. Saraswati
Sarkar (PW-13). According to the prosecution case, Prangopal Sarkar, in his
statement recorded under Section 161 Cr.P.C. has stated that he saw the
accused to enter into the room of the victim. This fact was also stated by the
informant during her examination-in-chief. PW-8, the informant-mother in
her examination-in-chief has stated that "After knowing the aforesaid
incident from my victim daughter, I informed the entire incident to the wife
of the accused and also to other neighbours, namely, Prangopal Sarkar and
Smt. Saraswati Sarkar. At that time, my neighbour Prangopal Sarkar told
me that he saw the accused Krishnadhan Sarkar entering into my house."
Thereafter, attention of the witness was drawn to her statement recorded
under Section 161 Cr.P.C. where PW-8 admitted that there was no such
statement.
Learned counsel for the appellant further submits that neither
Prangopal Sarkar (PW-12) nor Saraswati Sarkar (PW-13) had corroborated
this statement of the informant in their evidences. None of the neighbours
came forward to support the statement of PW-9 that the accused-appellant
had entered into the house of the informant. On the basis of the aforesaid
evidences, Mr. Bhattacharjee, learned counsel for the appellant has
submitted that the present case is a fit case for acquittal because the
prosecution has miserably failed to prove the guilt of the accused in
connection with the crime, as alleged.
8. Opposing the submission of learned counsel for the appellant,
Mr. Ghosh, learned Additional PP has submitted that the prosecution has
been able to prove the case on the ground that the statement of the victim is
found to be all along consistent with the statement she made in her statement
recorded under Section 164(2) Cr.P.C. Furthermore, PW-8, the mother of
the victim i.e. the informant, also corroborated the statement of the victim
and according to learned Additional PP, learned Special Judge has not
committed any wrong in coming to a conclusion that the accused-appellant
is guilty of the offences, charged against him.
9. We have considered the rival submissions advanced by learned
counsel appearing for the parties. We have also meticulously perused the
evidence of the victim (PW-9), and the evidence of the informant (PW-8).
10. After careful perusal of the evidences of PW-8 and PW-9
coupled with the medical evidence, as adduced by the doctor (PW-2), in our
opinion, the evidence of the victim and her mother does not appear to be
inspiring. The victim (PW-9) has stated in her examination-in-chief that
during the absence of her parents the appellant entered into her room and
asked her to put off her wearing apparels including her panty. She tried to
resist initially, but, she was forced to put off her wearing apparels being
threatened by the appellant and thereafter he forced her to lie on the bed and
the accused-appellant put off his lungi and thereafter inserted his finger in
the private parts of the victim followed by penetration by his penis. It is
further stated that the victim tried to resist the accused-appellant from doing
such wrongful thing, but, she failed.
10.1. Thereafter, we have carefully perused the evidence of PW-8,
the informant. She also supported the version of the victim (PW-9).
However, she deposed that after such disclosure by her daughter, they went
to the house of the appellant and narrated the incident to the wife of the
appellant. On the way they met with Prangopal Sarkar (PW-12) and
Saraswati Sarkar (PW-13), when Prangopal Sarkar told them that he had
seen the appellant to enter into the house of the victim at the relevant point
of time.
11. After perusal of the evidences of PW-12 and PW-13, we find
that none of them had corroborated the evidence of PW-8, the informant,
and they appeared to be hearsay evidence. They have stated in their evidence
that one day they heard from the father of the victim about the incident that
the accused had committed some wrong with her daughter.
12. PW-8, the informant in her deposition has specifically deposed
that the appellant had forcefully penetrated his fingers in the vagina of her
daughter i.e. PW-9 after lying her on the bed and inserted his penis to the
genital of the victim i.e. PW-9, and the version of PW-8 was corroborated by
the evidence of PW-9. If that being the position, there might be some sign of
flow of blood from the private parts of the victim. If we believe the
statements of the victim and her mother(PWs 9 and 8 respectively) for a
moment, then, it would not unreasonable to come to a finding that the
penetration or fingering by the accused must leave some signs/marks of the
said forceful acts of the accused in and around the vagina, the girl being
aged only 7(seven) years. In furtherance thereof, there must be some marks
of blood in the bed-sheet/bed-cover, where the girl was allegedly raped. On
meticulous perusal of the case record, particularly, the seizure Memo.(Exbt.-
2), this court finds that neither the wearing apparel of the victim nor the bed-
sheet were either produced by the informant before the investigating agency
or the investigating agency had seized any of those articles from the custody
of the victim or the informant. In view of this, according to us, it is highly
doubtful regarding veracity of the offence, as alleged, in absence of any
recovery/seizure and their non-production during the course of investigation.
13. It is true that injury in the private parts of a raped victim is not a
sine qua non, but, the statements/evidence let in by the prosecutrix and her
mother must appear to be trustworthy and inspiring to the court. Here, in the
First Information Report(FIR) it is stated that the accused penetrated his
fingers into her vagina and also inserted his penis(male organ) into her
vagina. The informant i.e. PW-8 has further stated in her complaint that she
found the panty of her daughter wet. In that case, she ought to have
produced the said panty or police also should have seized it to make such
statement credible.
14. We have also perused the SFSL report (Exhibit-2) where
neither seminal stain nor foreign materials were found and the entire report
is found to be negative. PW-2, doctor, deposed that during her medical
examination she did not find any swelling or any kind of injury or force in
the private parts of the victim. In her report, PW-2, has specifically stated
that after examination of the victim, seminal stain, spermatozoa of human
origin was not detected in the samples that were collected and finally opined
that the act of rape cannot be confirmed. During cross-examination PW-2
had also deposed that there was no complain of suffering any pain or
discomfort during walking, urination or defecation from the victim. As per
deposition of PW-2 if there was any penetration by any means, the hymen of
the victim would have been ruptured or tore but her hymen was intact.
15. We have consciously considered the aforesaid relevant
evidences adduced by both the prosecution and the defence. The accused-
appellant through producing two defence witnesses had tried to build up a
case that there was enmity between two families and the father of the victim
had borrowed Rs.30,000/- out of loan from him for the treatment of his wife.
16. As we said earlier, the prosecution story as regards insertion of
fingers and penetration in private parts of the victim appeared to be
exaggerated. The way the prosecution had let in the story, according to us,
had the incident occurred in that fashion, then, there must be some sign of
force or injury in and around the private parts of the victim for the reason
that at the time of incident the victim was only attaining the age of 7 years
and she was medically examined just after a day of the incident. So, had
there been any force or such type of penetration or fingering, then, there
must be some sort of evidence to lead this court to believe the prosecution
story that the appellant had raped the victim who was attaining the age of 7
years only at the time of commission of offence. Thus, the evidence of the
victim and her mother does not inspire any confidence.
17. The learned Special Judge had strongly relied upon the
evidence of the victim and her mother to pass the judgment of conviction
and sentence. However, according to us, learned Special Judge did not
consider the fact that if there was insertion of fingers followed by
penetration by penis and that too by applying force, then, there must be some
sort of marks in and around the private parts of the victim as because a story
was also built up by the prosecution that the appellant had also touched the
breast and other parts of the body of the victim and he applied enough force
upon the victim to commit rape. So, according to us, the prosecution has
miserably failed to prove the guilt of the accused-appellant.
18. What this court had analyzed that appellant had allegedly
threatened the victim to take off her clothes and thereafter, after lying her on
the bed had committed forceful penetration upon the victim (PW-9) by
inserting his finger and penis into the private parts of the victim. Later the
victim disclosed the matter to PW-8, her mother who lodged an FIR against
the appellant. Medical examination was conducted on the next day. The
Medical report and the testimony of the Medical Officer demonstrate that
there were no signs of external injury; the HYMEN was intact; there were no
signs of lacerations on examination of the vagina. The Medical Officer has
testified that her examination was thorough. None of these objects viz. the
wearing apparels of the victim, the bed sheet, had been seized and produced
before this Court nor any reason given for not doing so. Considering the
above facts; materials and evidence of the Medical report & testimony of the
Medical Officer that there was no external nor internal injury and the hymen
being intact; it is difficult to establish the commitment of offences u/s 376
(2)(i) & Section 6 of POCSO Act. In the above circumstances, this Court is
of the considered view that the prosecution has failed to prove the guilt of
the accused u/s 376 (2)(i) & Section 6 of POCSO Act.
19. In the ultimate analysis of the entire episode and the facts and
circumstances thereof, the instant appeal stands allowed. The appellant is
acquitted and set at liberty forthwith. The judgment and order of conviction
and sentence dated 04.05.2023 passed by the learned Special Judge
(POCSO), West Tripura, Agartala, in connection with case No. Special
(POCSO) 25 of 2019 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
SAIKAT KAR Date: 2024.05.30 14:58:30
