Tripura High Court

Convict vs The State Of Tripura on 7 October, 2024

                     HIGH COURT OF TRIPURA
                           AGARTALA
                        Crl. A. No.24 of 2023
 Md. Abdul Rahim,
 S/o. Abdul Latif,
 Vill - Bhitorgul, P.S. Kadamtala,
 District-North Tripura.
                                              ------ Convict-Appellant
                               Versus
 The State of Tripura,
 Represented by the Secretary,
 Department of Home,
 Government of Tripura,
 New Secretariat Complex
 Kunjaban, P.S. N.C.C.
 District-West Tripura.
                                                    ------ Respondent

  For Appellant(s)        :    Mr. Alik Das, Adv.
  For Respondent(s)       :    Mr. Raju Datta, P.P.,
                               Mr. S. Ghosh, Addl. P.P.
  Date of hearing         :    30.09.2024
  Date of delivery of
  Judgment & Order        :    07.10.2024
  Whether fit for
  reporting               :    YES

            HON'BLE MR. JUSTICE BISWAJIT PALIT

                          Judgment & Order

This appeal is preferred challenging the judgment and

order of conviction and sentence dated 18.10.2023 delivered by

Learned Special Judge (POCSO), North Tripura, Dharmanagar in

connection with case No.Special(POCSO) No.1. of 2017. By the

said judgment, Learned Court below has found the appellant to

be guilty for the offence under Section 354 of IPC and also

under Section 8 of the POCSO Act and sentenced him to suffer

RI for 3(three) years and to pay a fine of Rs.1000 under Section

354 of IPC and i.d. of payment of fine to suffer SI for a further

period of one month and the Learned Court below further

sentenced the convict to suffer RI for 3(three) years and to pay

fine of Rs.1000/- under Section 8 of POCSO and i.d. to suffer

imprisonment for a further period of 1(one) month and it was

further ordered that both the sentences shall run concurrently.

2. Heard Learned Counsel Mr. Alik Das representing the

appellant and also heard Learned P.P. Mr. Raju Datta assisted

by Learned Addl. P.P. Mr. S. Ghosh for the State-respondent.

3. Here in the given case, prosecution was set into motion

on the basis of an FIR laid by the victim herself to the O/C

Kadamtala P.S. alleging inter alia that on 13.12.2016 in the

afternoon the victim girl aged about 10 years was washing the

house hold utensils in the courtyard of her house at Tangibari

under Kadamtala P.S and during that time, she was alone in the

residence when the appellant who is having betel nut garden

near the house of the victim girl came there and caught hold

the victim from her back and pressed her breast. The minor

victim girl became frightened and she ran inside her house then

the accused also followed her inside the house and caught hold

her hand. However, the victim somehow managed to escape

from her house and went to the house of her grandmother

Surja Mani Munda and disclosed the incident and the matter

was also informed to the local panchayat but no action was

taken. So, the victim herself laid the FIR.

4. On the basis of FIR, O/C Kadamtala P.S. registered

Kadamtala P.S. Case No.59/2016 dated 15.12.2016 under

Section 448/354A of IPC and also under Section 8 of POCSO Act

and endorsed the case to the IO. The IO on completion of the

investigation laid charge sheet against the appellant before the

Court.

5. Before the Trial Court, the prosecution to substantiate

the charge adduced in total 10 nos. of witness and one witness

as CW-1 was examined by the Court and the prosecution was

also relied upon some documents which were marked as

exhibits in this case.

For the sake of convenience, the name of witnesses and

the exhibited documents are mentioned hereinbelow:

Prosecution witnesses:

i) PW-1 : Miss Rupali Munda

ii) PW-2 : Smt. Bithika Munda

iii) PW-3 : Smt. Laxmi Mani Munda

iv) PW-4 : Smt. Ruhita Munda

v) PW-5 : Rob Ali

vi) PW-6 : Sri Subhas Barua

vii) PW-7 : Sri Biswajit Paul

viii) PW-8 : Sri Sandip Deb

ix) PW-9 : Sri Pijush Kanti Saha

x) PW-10 : Smt Simati Urang

xi) CW-1 : Sri Niranjan Halam

Prosecution Exhibits:

i) Exbt.-1 : Signature of PW1 on the ejahar

ii) Exbt.-1/a : Signature of PW10 on the ejahar

iii) Exbt.-2,2a,2b : Signature of PW1 u/s.

164(5) Cr.P.C. statement.

iv) Exbt.-3 : Signature on the seizure list.

v) Exbt.-3/a : Seizure list

vi) Exbt.-3/b : Signature of PW10 on the Seizure list

vii) Exbt.-4 : Report of Medical examination

viii) Exbt.-5 : Hand sketch map with Index

ix) Exbt.-6 : Report of Radiologist

6. On conclusion of trial, the Learned Court below found

the appellant to be guilty and convicted him guilty accordingly.

It is to be noted here that in course of examination, the

appellant under Section 313 of Cr.P.C. denied the prosecution

allegation and also denied to adduce any witness in support of

his defence. Rather he took the plea that at about 15 days back

prior to the lodging of FIR, he scolded the victim girl as she was

damaging his trees and plants in his land and thereafter this

case was registered against him.

7. Now, for the sake of convenience, let us project the

subject matter of evidence on record of the prosecution before

the Learned Court below.

8. PW-1 is the victim of this case. She deposed that she

was a student of Class V and the incident took place when she

was in Class IV and appeared in annual examination and it was

a day of winter. That day, she along with her younger brother

Bijen Munda were present in the residence and he was a

student of Baloary school. That time, she was washing utensils

outside their house. She carried water from a lunga where a

well was situated. There the appellant came and he came from

the back side and pressed her breast. Immediately she ran

away and entered into her hut. The appellant also chased her

and entered inside the hut and caught hold her hand. Then she

ran away and went to her uncle's house and she informed the

appellant that she would tell everything to her nani and when

the appellant inquired what she would tell her nani thereafter

he left. At that time her mother was out of her house as she

was a worker of Piyaracherra tea garden. She further stated

that house of the appellant is situated at Bhitorgul and near by

her house, the appellant had a betel nut garden and on that day

he came there to see his garden. She further stated that the

accused was absent on that day to the Court and had he be

present she could identify him. She further stated that she

knew the appellant from earlier because he came to their

locality on so many occasions and her mother returned back to

home at about 4pm then she reported the matter to her mother

then her mother informed the matter to different persons and

incident took place on Tuesday and on Thursday she laid the

FIR. She further stated that her two mothers and her uncle

accompanied with her to Kadamtala P.S. when she narrated the

incident to a female police officer and that person recorded her

complaint. She identified her signature on the ejahar marked as

Exbt.-1. She further stated that police arranged for recording

her statement by a Judicial Magistrate and she identified her

signature on the statement recorded by a Judicial Majistrate

which was marked as Exbt-2, 2a and 2b. She further stated

that her mother gave her RTI. She was taken to Dharmanagar

District Hospital and police seized her wearing frock which was

of violet colour with yellow flower and she put her signature on

the seizure list and she identified her signature on the seizure

list marked as Exbt.3 and seized frock was marked as Exbt.MO-

During cross-examination, save and except denial

nothing came out relevant.

9. PW-2, Bithika Munda is the mother of the victim. She

deposed that on 13.12.2016, she was absent at her residence

as she went to tea garden for work. She returned back to home

at about 4.00 pm and after returning back her daughter i.e. the

victim informed her that on that day at noon while she was

washing utensils, that time, the appellant came and from back

side he touched the breast of the victim and being afraid she

raised alarm and went inside the hut and when the appellant

also followed her and caught hold her hand and out of fear she

ran away to her uncle's house and after two days of the incident

she took her daughter to Kadamtala PS and there one female

police officer recorded her oral ejahar. She reported the matter

to the panchayat for salishi and Panchayat adviced her to report

the matter to PS and accordingly she informed the matter to

PS. She further stated that during investigation police took her

daughter to Dharmanagar Hospital for examination and brought

her to Dharmanagar Court for recording her statement. She put

her RTI in her deposition sheet. She identified Exbt.MO-I.

Further stated that the appellant Rahim had some betel nut

plants near by her house and regularly he used to come to that

garden. Also stated that she could identify the appellant had he

be present in the Court. Also stated that her husband married

two times and she used to live with the first wife of her

husband.

During cross-examination, nothing came out relevant

except denial.

10. PW-3, Laxmi Mani Munda deposed that her husband

married twice and the second wife of her husband had three

children and the present case relates to the daughter of the

second wife of her husband. She could not say anything

furthermore about this case.

11. PW-4, Ruhita Munda deposed that the mother of the

victim is the daughter-in-law of the brother of her husband and

as such victim used to tell her as Nani and her house is

adjacent to the house of the victim. The incident took place

about six months back one day at noon at about 12.00 hours.

That day, the victim reported her that almost after few minutes

of the incident while she was cleaning utensils outside their hut

that time the appellant Rahim came from the backside and

pressed her persons and the actual word used by her were as

follows:

"Rahim amare tipatipi karche." At that time I and Surjyamohan

Munda were taking the beetle leaves at my house. I know

Rahim. Today Rahim is not present in the court. I could identify

Rahim had he remained present in the court.

During cross-examination, nothing came out relevant.

12. PW-5, Rob Ali deposed that the incident took place

about 5-6 months back one day at noon. On that day in the

evening he came to know about the incident. That day mother

of the victim, step mother of the victim and the victim visited

his house and reported him that in absence of the other

members of the house of the victim when the victim was

cleaning the utensils, that time the appellant Rahim came and

touched her persons and when the appellant rushed to her hut,

that time, the appellant also chased her and outraged her

modesty and pressed her breast. He further stated that that

time he stated that as the appellant belongs to another

panchayat so he adviced them either to inform the panchayat

members of that locality or the matter may be reported to the

police. He further stated that the appellant was known to him

and he could identify him had he be present in the Court.

During cross-examination, nothing came out relevant.

13. PW-6, Subhas Barua could not say anything about the

prosecution case.

14. PW-7, Biswajit Paul deposed that on 17.12.2016 in the

Dental Clinic (OPD) of Dharmanagar Hospital in connection with

Kadamtala PS case no. 2016 KDL 059 dated 15.12.2016 U/S

448,354(1)(i) IPC and 8 of POCSO Act, 2012 he examined one

child name withheld to ascertain her age on the basis of her

teeth. On examination of her teeth, he found that in upper jaw

in both the sides teeth number 1,2,3 and 6 were erupted after

falling of milk teeth and there were two milk teeth which were D

and E and after falling of milk teeth D and E in their place, the

permanent teeth number 4 and 5 would appear and in both

sides of lower jaw, he found 1,2 and 6, D and E teeth. The teeth

number 3 in lower jaw was in erupting stage and in the upper

jaw in the right side, number 3 tooth was also found in erupting

stage. On the basis of position of teeth he opined that she was

about 9 years old and further stated that at best one year may

be added on the basis of physical condition and he identified the

report which was marked as Exbt.-4.

He was declined to cross-examination by the appellant.

15. PW-8, Sandip Deb deposed that on 15.02.2016 he was

posted as Medical Officer of Kadamtala CHC. When police

personnels brought one person to ascertain the age of the

victim either for ossification test or for examining the teeth,

since they had no such arrangement in the CHC, they used to

refer the patient to Dharmanagar Hospital. He could not say

anything furthermore about this case.

He was declined to cross-examination by the appellant.

16. PW-9 is the IO who laid charge sheet against the

appellant. He deposed that on 15.02.2016 he was posted at

Kadamtala PS. On that day, he received Kadamtala PS case

No.2016/KDL 059 under section 448, 354 (1) (I) IPC and 8 of

POCSO Act, 2012 which was registered by the O/C Pradhyut Ch.

Datta on the basis of oral ejahar made by the victim recorded

by one Woman Constable Smt. Simati Udang. He further stated

that the allegation, in short, was that on 13.12.2016 at about

12.00 hours when the victim was alone at home and she was

cleaning utensils in the courtyard of her house. That time, the

appellant, Abdul Rahim aged about 45 years came from her

back side and started to touch her breast and out of fear of said

Rahim, she rushed to her hut and that time, Rahim also chased

her. The victim told Rahim to leave her and also cried out and

somehow she managed to escape from the hut and went to

Surja Mani Munda's house and in the mean time, the accused

managed to escape. He visited PO and prepared hand sketch

map with index of the PO. He identified hand sketch map of the

PO with index which was marked as Exbt.-5. In the hand sketch

map 'A' was shown as the place where the victim was cleaning

utensils and that was the first PO and that place was within the

house premises of the victim and 'B' is the dwelling hut of the

victim. 'C' is an ongoing construction of a hut within that house.

'E' is the pond of one Moniruddin and 'F' is another pond owned

by the accused. 'I' is the betel nut garden owned by the

accused person and that is situated in a lunga and 'G' is the

entire courtyard of the victim's house. 'D' indicates the house of

one Ruhita Munda. He further stated that after preparing hand

sketch map of the PO he arranged for recording 161 statement

of the victim and on that day he seized one wearing tap frock of

the victim by a seizure list and identified the same marked as

Exbt.-MO-I. He also identified the report of the radiologist

regarding age of the victim which was marked as Exbt.-6 and

the report of Dental Surgeon which was marked as Exbt.-4. He

further stated that he arranged for recording the statement of

the victim by Judicial Magistrate, Kanchanpur and on

completion of investigation, he laid charge sheet.

During cross-examination, he stated that PO is about

10 km away from the PS. The incident took place on

13.12.2016 at noon and the incident was reported to the PS on

15.12.2016. He did not collect the School certificate of the

victim.

17. PW-10 deposed that on 15.12.2016 she was posted at

Kadamtala PS as woman constable. On that day being ordered

by the O/C she recorded the oral ejahar of the victim and she

read over and explained the contents of the same to her and

she identified the recorded oral ejahar with her signature which

was marked as Exbt.-1/a. She further stated that after

obtaining the signature of the victim, she handed over the same

to the officer-in-charge of the PS for registration and after

registration of the case, she also recorded the statement of the

victim child as per instruction of IO and on that day the IO also

seized one wearing frock which was of violet colour with some

yellow flower print and after identification marked as Exbt.-3/b.

She also took the victim to Kadamtala CHC and thereafter to

Dharmanagar Hospital for her ossification test and for

examination by Dental Surgeon and introduced the victim to the

Medical Officer and Dental Surgeon.

18. CW-1 deposed that on 22-05-2018 he was posted at

Kadamtala PS as ASI of police and on that day, O/C of the PS

endorsed him to execute the proclamation against the appellant

and accordingly he went to Bhitorgul, Ward No.2 for executing

the proclamation and he read out the proclamation in presence

of the villagers and then pasted the proclamation in a

conspicuous place of their homestead and another copy of the

proclamation was pasted in the official notice board and then he

returned back the service report.

These are the sum and substances of the evidence on

record of the prosecution in respect of determination of charge

laid against the appellant.

19. In course of hearing of argument, Learned Counsel for

the appellant submitted that in this case on perusal of the

charge, it appears that the same was not duly signed and

Learned Counsel for the appellant further submitted that during

the entire trial, the appellant remained absent and in absence

of the evidence recorded by the Learned Trial Court and

furthermore, no independent witness was adduced by the

prosecution before the Learned Trial Court. So, in summing up

Learned Counsel for the appellant urged for setting aside the

Judgment of the Learned Trial Court and to remand back the

matter to the Learned Trial Court for de novo trial of the

appellant.

20. On the other hand, Learned P.P. appearing for the

State-respondents fairly submitted that from the act and

conduct of the appellant, it is crystal clear that he was duly

represented by his Learned defence Counsel before the Learned

Trial Court and even during his examination under Section 313

of Cr.P.C., no such plea was taken by the appellant that the

evidence was recorded in his absence and he failed to give any

explanation against the incriminating materials revealed against

him from the evidence on record of the witnesses of the

prosecution and urged for upholding the judgment and order of

conviction and sentence delivered by the Learned Trial Court.

21. From the evidence on record, it appears that at the

time of alleged occurrence to the PO save and except the

victim, no other person was present to the PO. So, here the

victim herself is the eyewitness of the case. To substantiate the

charge, prosecution as already stated has adduced in total 10

nos. of witnesses.

22. The appellant by the trend of cross-examination of the

witnesses of the prosecution i.e. specifically the victim could not

raise any doubt or cloud to discard the evidence on record of

the prosecution. In course of hearing of argument, Learned

Counsel for the appellant although took the plea that Learned

Court below recorded the evidence in absence of the appellant

before the Learned Trial Court but on perusal of the record, it

appears that two counsels were engaged by the appellant to

conduct his defence who conducted the case on his behalf

before the Learned Trial Court below.

23. The appellant in course of his examination under

Section 313 of Cr.P.C save and except denial did not submit

anything regarding that the trial was conducted in his absence.

Rather he took the plea that he caused a slap to the victim girl

for which this case was manufactured. But in this regard, to

substantiate his defence, no satisfactory evidence on record

could be adduced by the appellant before the Learned Trial

Court.

24. Admittedly, there was some delay in lodging the FIR

but considering the materials on record, it appears that after

the incident, the mother of the victim took up the matter with

the local murrubis but as they could not resolve the matter so

ultimately the victim laid the FIR against the appellant.

25. Now, if we go through the statement of the victim girl

recorded by Learned Magistrate, it appears that before the

Court also she reiterated the same story as mentioned by her in

the initial FIR laid by her to the O/C of the concerned PS. The

appellant inspite of cross-examination of the victim could not

raise any circumstance to disbelieve her evidence. Even from

the dental report which remains unrebutted, it appears that the

victim on that relevant point of time was 9 years old. In this

regard, there was no cross-examination from the side of the

appellant before the Learned Trial Court regarding age of the

victim.

26. Admittedly, in this case, Learned Court below found the

appellant to be guilty for the offence punishable under Section

354 of IPC and also under Section 8 of the POCSO Act which in

my considered view was not proper in view of the provision

provided under Section 42 of the POCSO Act. The Learned Trial

Court below could either convict the appellant under Section

354 of IPC or under Section 8 of the POCSO Act. Since the

charge under Section 8 of POCSO Act is proved against the

appellant so the sentence under Section 354 of IPC cannot be

sustained against the appellant.

Now, for the sake of convenience I would like to refer

herein below the relevant provision of Section 8 of POCSO Act

which is as follows:

8.Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

27. Since from the evidence on record, it appears that the

present appellant has violated the provision of Section 7 of the

POCSO Act as such he is liable to be convicted under Section 8

of the POCSO Act. Furthermore, the delay in filing the

ejahar/FIR as alleged by PW-1 (victim) cannot demolish the

prosecution case in the context of the age of the victim and the

nature of offence as reported. Hon'ble Supreme Court of India

in Tulshidas Kanolkar v. State of Goa reported in (2003) 8

SCC 590, laid down the principle of law by observing the delay

per se is not a mitigating circumstances and such delay, if

explained properly, is not fatal for the case of the prosecution.