Tripura High Court
Sri Rajib Deb & Anr vs The State Of Tripura on 4 October, 2024
HIGH COURT OF TRIPURA
AGARTALA
I.A. No.01 of 2024
in CRL.A.(J) No.47 of 2024
Sri Rajib Deb & Anr.
...... Petitioner(s)
Versus
The State of Tripura
...... Respondent(s)
For Petitioner (s) : Mr. P.K. Biswas, Sr. Adv.
Mr. R. Nath, Adv.
For Respondent(s) : Mr. R. Datta, PP
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
Order
04.10.2024
Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. R. Nath,
learned counsel appearing for the appellant-petitioners.
Also heard Mr. R. Datta, learned PP appearing for the State.
The judgment dated 29.06.2024 passed by the learned Special Judge
(POCSO), Sepahijala District, Bishalgar in Special (POCSO) 08 of 2016 and the
consequent sentences passed thereupon are under challenge in this appeal.
Mr. Biswas, learned senior counsel submits that as per the evidence of the
victim, on the alleged date of incident, in the afternoon at about 4.30 pm, when
she was alone in the house taking her meal, suddenly both the appellant-
petitioners came to their house caught hold of her hands, slapped and pulled her
and also touched her parson, whereas the neighbouring people who came just
after the incident viz. PW-5 and PW-6, did not utter a single word against the
present appellant-petitioners and they were also not declared hostile by the
prosecution. Mr. Biswas, learned senior counsel submits that the Upa-Pradhan of
the village of the victim i.e. PW-7 has also not stated anything against the
appellant-petitioners and he was also not declared hostile. Referring to the
evidence of PW-10, who is one of the relatives of the victim, came to the house of
the victim just after the incident though in her evidence, she named the appellant-
petitioners to be the miscreant of the occurrence but when PW-5 and PW-6 did
not support her, so she was not reliable witness and moreso two sets of evidence
of prosecution came out rendering the prosecution's story disbelievable. Mr.
Biswas, learned senior counsel further submits that there has been unexplained
delay of 5[five] days in lodging the FIR. According to Mr. Biswas, learned senior
counsel, if the evidence of independent witnesses are taken note of, there is no
satisfactory evidence of outraging the modesty of the victim and at best the
incidence of physical assault may come out and there is also no reason assigned
by the learned trial court for inflicting highest form of punishment as prescribed
under Section 8 of the POCSO Act.
Referring to Section 430 of the Bharatiya Nyaya Sanhita (BNS), 2023, Mr.
Biswas, learned senior counsel lastly argues that when prescribed punishment
imposed is less than 10 years, there is even no legal requirement to hear the
prosecution while dealing with the matter of suspension of sentence.
Mr. Datta, learned PP, on the other hand, seriously opposes the prayer
referring to the evidence of the victim as well as PW-10. Mr. Datta, learned PP
takes the court to the evidence of PW-10 that she had categorically named the
appellant-petitioners to be the miscreant of occurrence and also stated that the
victim had informed her that the appellant-petitioners pulled her wearing apparels.
According to Mr. Datta, learned PP, the father of the victim also corroborated that
part of the evidence of the both the victim and PW-10 and therefore, the learned
trial court was completely justified in convicting the appellants.
Finally, Mr. R. Datta, learned PP relies on a decision of the Apex Court in the
case of Kishori Lal vs. Rupa and Others, (2004) 7 SCC 638, wherein at
Para-8 it was observed by the Apex Court referring to another decision rendered in
Vijay Kumar vs. Narendra, (2002) 9 SCC 364 that in cases involving
conviction under Section 302 IPC, it is only in exceptional cases that benefit of
suspension of sentence can be granted. Mr. Datta, learned PP relies on another
decision of the Apex Court in case of Phool Singh vs. State of Madhya
Pradesh, (2022) 2 SCC 74 wherein at Para-9 it was observed that as a general
rule, conviction of the accused can be based on sole testimony of the prosecutrix,
if it inspire confidence. This decision may be relevant at the time of final hearing of
the appeal.
On prima facie consideration of the points as argued from both sides, it
appears that PW-5 & PW-6 who, according to the prosecution, also came to the
alleged place of occurrence just after the incidents along with PW-10 but they did
not say anything regarding outraging the modesty of the victim or also did not
name the appellant-petitioners to be the miscreants and they were also not
declared hostile by the prosecution. It is also fact that the highest form of
punishment prescribed under Section 8 of the POCSO Act has been imposed by
the learned trial court as argued by Mr. Biswas, learned senior counsel. As
submitted by Mr. Biswas, learned senior counsel that the appellant-petitioners
during trial were on bail and did not misuse the liberty granted to them at that
time.
Considering all these aspects, the petition for suspension is allowed. The
operation of the impugned judgment dated 29.06.2024 passed by the learned
Special Judge (POCSO), Sepahijala District, Bishalgar in Special (POCSO) 08 of
2016 and consequent sentences passed thereupon, are hereby suspended till
disposal of the connected appeal. The appellant-petitioners, may go on bail on
furnishing a bail bond of Rs.25,000/- [Rupees thirty thousand] with one surety
each of the like amount to the satisfaction of the learned trial court.
Accordingly, this interlocutory application stands allowed and disposed of.
The Registry is directed to communicate this order to the trial court
immediately.
It is however clarified that whatever has been observed hereinabove will
have no bearing during hearing of the appeal on merit.
JUDGE
SUJAY GHOSH Digitally signed by SUJAY GHOSH
Date: 2024.10.05 16:16:42 +05'30'
Sujay
