Tripura High Court

Convict vs The State Of Tripura on 7 October, 2024

                           HIGH COURT OF TRIPURA
                                  AGARTALA
                             Crl.A.No.20 of 2023

       Sri Rakhal Chandra Debnath,
       son of Late Nibaran Debnath
       of West Radhapur, Dharmanagar,
       District-North Tripura

                                                     ----Convict-Appellant(s)
                                        Versus

       The State of Tripura
                                                           ----Respondent (s)

       For Appellant(s)             :     Mr. B. Deb, Adv.
       For Respondent(s)            :     Mr. S. Ghosh, Addl. P.P.
       Date of Hearing              :     27.09.2024
       Date 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 27.07.2023 delivered by Learned Special Judge

(POCSO), North Tripura, Dharmanagar in connection with Case No.Special

(POCSO)03 of 2021. By the said judgment, Learned Special Judge convicted

the appellant under Section 354 of IPC and sentenced him to suffer RI for

three years and to pay fine of Rs.1000/-, id to suffer further imprisonment for

one month and the Learned Special Judge also convicted the appellant under

Section 8 of the POCSO Act and sentenced him to suffer RI for three years and

to pay fine of Rs.1000/-, id to suffer further imprisonment for one month and it

was also ordered that both the sentences shall run concurrently.

[2] Heard Mr. B. Deb, Learned counsel appearing on behalf of the

appellant as well as Mr. S. Ghosh, Learned Addl. P.P. appearing on behalf of

the State-respondent.

[3] Before proceeding further with the merit of the appeal, let us

discuss about the subject matter of the prosecution before the Learned Court.

[4] On 26.11.2020 at about 1330 hrs. when the victim (the name

withheld) along with her friends Ms. Sima Debnath and Ms. Reshmi Debnath

went to the jungle nearby to their house at West Radhapur under

Dharmanagar P.S.to collect fire woods and during that time, the accused-

appellant Rakhal Debnath suddenly came there and initially caught hold the

hand of said Ms. Sima Debnath but Ms. Sima Debnath somehow managed to

free herself along with Ms. Reshmi Debnath from the clutch of Sri Rakhal

Debnath, the appellant and managed to fled away from the place. After that,

the accused managed to detain the victim and outraged her modesty by

touching her chest and thereafter, the victim managed to leave that place and

returned home and informed the matter to her parents and accordingly, the

mother of the victim Smt. Sabita Nath laid an FIR to O/C Dharmanagar Woman

P.S. and accordingly, a specific case was registered and the IO after

completion of investigation laid charge-sheet against the accused-appellant

under Section 354 of IPC and Section 8 of POCSO Act. Before the Learned

Special Judge, formal charge under Section 354 of IPC and also charge under

Section 8 of POCSO Act was framed against the appellant by the Learned

Special Judge and the same was explained to him in Bengali to which he

pleaded not guilty and claimed not to be tried.

[5] During trial to substantiate the charge, the prosecution in total

has adduced thirteen numbers of witnesses and the prosecution also relied

upon some documents which were marked as exhibits in this case. For the

sake of convenience, the name of witnesses of the prosecution and the exhibits

are mentioned herein below :

"A) Prosecution Witnesses :

PW-1 :- Ms. Reshmi Debnath PW-2 :- Smt. Ratna Debnath PW-3 :- Smt. Manibala Nath PW-4 :- Smt. Basumati Debnath PW-5 :- Smt. Prativa Nath

PW-6 :- Smt. Aparna Nath PW-7 :- Smt. Rabina Chakma PW-8 :- Dr. Bidhan Ch. Roy PW-9 :- Ms. Priyanka Nath PW-10 :- Ms. Sima Debnath PW-11 :- Smt. Sabita Nath PW-12 :- Sri Ajit Nath PW-13 :- Smt. Sanchita Nath

B) List of Exhibits on behalf of the prosecution :

Exhibit-1/1 :- Signature of PW-2 on the seizure list of birth certificate of Ms. Priyanka Nath.

Exhibit- 1/2 :- Signature of PW-7 on the seizure list. Exhibit- 1/3 :- Signature of PW-11 on the seizure list dated 29.11.2020.

Exhibit- 2/1 :- Signature of PW-2 on the seizure list of birth certificate of Ms. Sima Debnath.

Exhibit- 2/2 :- Signature of PW-7 on the seizure list.

Exhibit- 2/3 :- Signature of PW-11 on the seizure list dated 29.11.2020.

Exhibit-3 as a whole :- Signature of PW-8 on the medical report.

Exhibit-4 as a whole :- Signature of PW-8 on the x-ray report for age determination.

Exhibit-5/1 series :- Signature of PW-9 on statement u/s 164 Cr.P.C.

Exhibit-6/1 series :- Signature of PW-10 on statement u/s 164 Cr.P.C.

Exhibit-7/1 :- Signature of PW-11 in ejahar."

After conclusion of trial, Learned Special Judge, POCSO found the

appellant to be guilty and convicted him under Section 354 of IPC and also

under Section 8 of POCSO Act and challenging that judgment, this appeal was

preferred before the High Court.

[6] In course of hearing of argument, Mr. B. Deb, Learned counsel

appearing for the appellant has drawn the attention of the Court that the

evidence of the prosecution suffers from various infirmities but the prosecution

failed to explain the same before the Learned Trial Court and the Learned Trial

Court at the time of delivery of judgment did not consider those points for

which the judgment is suffering from perversity. It was further submitted that

at the time of framing of charge, Section 212 of Cr.P.C. was not complied with

by the Learned Special Judge(POCSO). He further submitted that the evidence

of the victim is contrary to the FIR and the evidence of PW-2 is contradictory

to the evidence of PW-1. No independent witnesses were adduced to support

the case of the victim in this case. No adjacent neighbouring witnesses were

produced so, on the face of evidence on record, there was no scope to convict

the appellant to be guilty in this case but the Learned Trial Court did not

consider the same. Finally, Learned counsel for the appellant urged for

allowing this appeal by setting aside the judgment and order of conviction and

sentence by the Learned Court below.

[7] Per contra, Mr. S. Ghosh, Learned Addl. P.P. appearing for the

State-respondent submitted that before the Learned Trial Court, the

prosecution has projected the evidence in such a manner that there was no

room to disbelieve the evidence on record of the prosecution and the Learned

Court below after considering the evidence on record rightly and reasonably

delivered the judgment finding the appellant to be guilty. So, in summing up,

Learned Addl. P.P. urged for dismissal of this appeal upholding the order of

conviction and sentence delivered by the Learned Special Judge(POCSO).

[8] Now, let us examine the evidence on record of the prosecution

adduced before the Learned Trial Court to substantiate the charge

PW-1, Miss Reshmi Debnath deposed that one day in the

afternoon she along with Sima Debnath and the victim entered into a jungle

nearby their house at West Radhapur with intent to collect firewood. While

they were collecting firewood inside the jungle suddenly she saw accused-

appellant Rakhal Dadu to appear from the backside of a bush and caught hold

the hand of the victim to commit something wrong. The witness and Sima

Debnath being frightened noticed the accused-appellant rushed out from the

jungle and informed one woman of their locality about the incident.

Subsequently that woman took PW-1 and Sima Debnath to their respective

houses and she identified the accused.

During cross-examination she stated that the jungle from where

they went to collect firewood was nearby their house. There were Segun plants

in the jungle where she went on that day. She further stated that she (PW-1)

concealed herself by entering into the bathroom of Sanjoy. Sima Debnath also

concealed herself in the kitchen of Nirmal Debnath. She could not say the

name of that woman.

PW-2, Smt. Ratna Debnath deposed that the victim is the friend

of her daughter Miss. Sima Debnath. About one year back one day her

daughter Miss. Sima Debnath along with her friends Miss. Reshmi Debnath and

the victim entered into a jungle nearby their house at West Radhapur with

intent to collect firewoods. Subsequently, while her daughter along with her

two friends were collecting firewoods inside the jungle, suddenly, the accused

Rakhal Debnath appeared therein and caught hold the hands of her minor

daughter with some ulterior motive. Her daughter somehow managed to free

herself from the grip of the accused but the accused caught hold the victim

with ulterior motive. Then and there her daughter and her friend Miss. Reshmi

Debnath rushed out from the jungle and informed the matter to the wife of Sri

Nirmal Debnath. Later on, her daughter was taken to their house by one Smt.

Aparna Debnath. During the course of investigation, one day the police seized

the birth certificate of the victim and the birth certificate of her daughter by

preparing separate seizure in presence of her and others and obtained her

signature on the seizure list and the witness identified her signature on the

seizure list in respect of seizure of birth certificate of the victim which was

marked as Exhibit-1/1 and she identified another signature on the seizure list

in respect of the birth certificate of her daughter which was marked as Exhibit-

2/1.

During cross-examination, she stated that the distance between

the place of occurrence and her house will be half kilometer approx and there

are two houses near the PO. One of the house is belonging to the victim and

the other house is of her uncle. Nothing more came out relevant from the

cross-examination.

PW-3, Smt. Manibala Nath deposed that about a year back one

day at about 12.30 pm her minor daughter Miss. Reshmi Debnath along with

her two friends the victim and Miss. Sima Debnath entered into a jungle

nearby their house at West Radhapur for collecting firewoods. When her

daughter and her friends were collecting firewoods inside that jungle suddenly

the accused Rakhal Debnath appeared therein and tried to detain Miss. Sima

Debnath. Subsequently her daughter rushed out to the jungle and informed

that matter to Smt. Basumati Nath, one of her co- villager.

During cross-examination, she stated that in the said jungle there

were some small trees of teak. She further stated that her daughter Reshmi

Debnath had concealed her in the bathroom of Smt. Basumati Debnath out of

fear.

PW-4, Smt. Basumati Debnath deposed that about a year back

one day at about 12.000/ 12.30 pm when she entered into their bathroom with

intent to take bath that time, she noticed Miss. Reshmi Debnath, the minor girl

of their neighbour Sri Rabindra Debnath inside their bathroom. She asked Miss.

Reshmi Debnath to go outside the bathroom but she did not. Then on being

asked by her Miss. Reshmi Debnath told her that she along with her two

friends namely Miss. Sima Debnath and the victim entered into a jungle for

collecting firewoods but that time accused Rakhal Debnath of their village tried

to detain all of them and ultimately Rakhal Debnath was successful to detain

one of the friends of Miss. Reshmi Debnath. Subsequently one of her

neighbourers sent Reshmi Debnath and her friend Miss. Sima Debnath to their

respective houses.

During cross-examination she stated that Miss. Reshmi Debnath

and her friends used to collect firewoods from the nearby tilla lands almost on

everyday. Nothing more came out relevant.

PW-5, Smt. Prativa Nath deposed that on 26-11-2020 at about

12.00/12.30 pm a girl namely Sima Debnath aged 11 years rushed to their

house and entering into their kitchen asked her to save her life. Being asked

by her Sima Debnath told her that she along with her friends were collecting

firewoods inside a jungle when accused Rakhal Debnath tried to detain Sima

Debnath but somehow she managed to flee away from the jungle but that time

accused Rakhal Debnath could detain one of the friends of Sima Debnath. Sima

Debnath also disclosed that her friend i.e. the victim was detained by accused

Rakhal Debnath.

During cross-examination, she stated that during investigation,

police examined her and recorded her statement but she did not tell to the

Investigating Police Officer that victim Sima Debnath had requested her to

save her life after entering into their kitchen. She was confronted with the

statement that she stated to Investigating Police Officer that Sima Debnath

informed her that accused Rakhal Debnath had detained the victim but on

drawing attention, such part of statement was not found in the statement of

the witness recorded by IO under Section 161 of Cr.P.C. Nothing more came

out relevant.

PW-6, Smt. Aparna Nath deposed that on 26-11-2020 at about

11.00 am she was in the house of their neighbour Sri Nirmal Nath. When the

witness and Smt. Prativa Nath, wife of Sri Nirmal Nath were chewing betel leaf

in the house of Sri Nirmal Nath, suddenly a girl namely Sima Debnath aged 11

years rushed to the house of Sri Nirmal Nath and asked to save her life. Being

asked, Sima Debnath told that she along with her friends were collecting

firewoods inside a jungle when the accused Rakhal Debnath tried to detain said

Sima Debnath but somehow she managed to flee away from the jungle but by

this time accused Rakhal Debnath could detain one of the friend of Sima

Debnath. Sima Debnath also disclosed that her friend i.e. the victim was

detained by accused Rakhal Debnath. Later on, when she(witness) was taking

to Miss. Sima Debnath to their home she met the victim on the public road and

came to learn that accused Rakhal Debnath had detained her inside the jungle

while she along with her friends were collecting firewoods and that time

accused Rakhal Debnath touched the breast of the victim.

During cross-examination, she stated that she told to the

Investigating Police Officer that Miss. Sima Debnath requested her and to Smt.

Prativa Nath to save her life but on drawing attention such part of statement

was not found recorded by IO in the statement of the witness. Nothing more

came out relevant.

PW-7, Smt. Rabina Chakma deposed that on 29-11-2020 she was

posted at Dharmanagar Women PS as a Constable. On that day WSI, Sanchita

Nath seized one birth certificate of the victim at Dharmanagar PS by preparing

a seizure list in presence of her and others on production of the birth certificate

by Smt. Sabita Nath, the mother of victim and obtained the signature on the

seizure list as a witness. The witness identified his signature on the seizure list

marked as Exhibit-1/2. On the same day WSI, Sanchita Nath also seized one

birth certificate of the victim Miss. Sima Debnath at Dharmanagar PS by

preparing a seizure list in presence of her and others on production of the birth

certificate by Smt. Ratna Debnath, the mother of victim Miss. Sima Debnath

and obtained her signature on the seizure list marked as Exhibit-2/2.

During cross-examination, she stated that there was no other

independent witnesses at Dharmanagar Women PS at the time of seizure of

birth certificates except the family members of the victim and Miss. Sima

Debnath.

PW-8, Dr. Bidhan Chandra Roy deposed that on 29-11-2020 as

Medical Officer of Dharmanagar District Hospital he received one requisition

from WSI, Sanchita Nath of Dharmanagar Women PS for arranging ossification

test and medical examination of two girls namely the victim and one Miss.

Sima Debnath. At the relevant point of time, the legal guardian of the victim

girl did not accompany them in the emergency block of the District Hospital.

Being asked by him, Miss. Sima Debnath expressed her unwillingness to go for

any medical examination as well as ossification test. So, he mentioned the

matter on the requisition slip and put his signature with official seal and the

report was marked as Exhibit-3. He examined the victim aged about 13 years

after obtaining her consent and found no external injury. He also advised x-ray

for determination of her age. Later on, he prepared one report and identified

the report in respect of the victim which was marked as Exhibit-4 (as a whole).

During cross-examination, he stated that the victim did not make

any physical complaint to him at the time of her medical examination.

PW-9, (the name withheld) is the victim. She deposed that the

informant of this case is her mother. On 26th November, 2020 at about 01.00

pm she herself along with her cousin Miss. Sima Debnath and Reshmi Debnath

went to a nearby jungle at West Radhapur for collecting firewood. While they

were collecting firewood inside the jungle that time, Rakhal Dadu suddenly

came from a bush and caught hold the hands of her cousin Sima Debnath.

Then her cousin gave a teeth bite on the hands of Rakhal Dadu for which he

was compelled to release Sima Debnath. That time, she attempted to save

Sima Debnath but all on a sudden Rakhal Dadu caught hold her hands and

forcibly took her to the house nearby the place of occurrence. After taking her

to the house, accused Rakhal Debnath touched her breast when she raised

alarm. Subsequently accused Rakhal Debnath released her when some local

people rushed to the house of the accused person hearing her shouting and

rescued her from that place. By that time her cousin Sima Debnath and

Reshmi Debnath also came to the house of Rakhal Debnath accompanied by

some of the villagers. Then she narrated the incident to everyone. During

investigation, she was brought to Dharmanagar Court where she made a

statement to the Judicial Magistrate and the witness put her signature on the

statement sheet and identified her signature which is marked as Exhibit-5/1

(series).

During cross-examination, she stated that she was unable to say

who is the owner of the said jungle area. Previously, it was belonged to

accused Rakhal Debnath. She further stated that she did not tell to the

Investigating Police Officer that the accused Rakhal Debnath was compelled to

release her cousin Sima Debnath while she gave teeth bite to accused Rakhal

Debnath. She also did not tell the Investigating Police Officer that accused

Rakhal Debnath had concealed him behind the bush. She could know that she

could learn from the villagers that her cousin Reshmi Debnath took shelter

inside a bathroom of a villager after the incident. The house of accused Rakhal

Debnath was adjacent to the place of occurrence inside the jungle. There were

also 10/ 12 houses at a few distance from the house of accused Rakhal

Debnath. She further admitted that she herself and her cousin had the habit to

collect firewood from that jungle and also admitted that accused Rakhal

Debnath obstructed them one day to collect firewood from the jungle.

PW-10, Miss. Sima Debnath deposed that informant, Smt. Sabita

Nath is her paternal aunt and the victim is her cousin and Miss. Reshmi

Debnath is her friend. On 26th November, 2020 at about 01.00 pm she along

with her cousin i.e. the victim and friend, Reshmi Debnath went to a nearby

jungle at West Radhapur for collecting firewood. While they were collecting

firewood inside the jungle suddenly Rakhal Dadu suddenly came out from a

bush and caught hold her hands. Then she raised alarm and gave some nail

bites to the hands of Rakhal Dadu for which he was compelled to release her.

At that time the victim also tried to save her but all on a sudden accused

Rakhal Debnath detained the victim. Thereafter, she herself and her friend

Reshmi Debnath left the place and informed the matter to some elderly

villagers. She could not say anything further more. During the course of police

investigation one day she was brought to Dharmanagar Court when she made

her statement before one lady Judicial Magistrate and put her signature on the

statement recorded by Learned Magistrate and identified her signature marked

as Exhibit-6/1 (series).

During cross-examination, she stated that police examined her

and recorded her statement in connection with this case. She further stated

that she did not tell IO that the victim attempted to save her from the hands of

accused Rakhal Debnath. She also did not tell to the IO that she informed the

incident to some elderly people of their village. She further admitted that she

took shelter in the kitchen of one Smt. Arpana Debnath but she did not say

anything to said Aparna Debnath or any of her family members. Nothing more

came out relevant.

PW-11, Smt. Sabita Nath is the mother of the victim. She

deposed that on 26-11-2020 at about 01.30 pm her daughter i.e. the victim,

along with her niece, Miss. Sima Debnath and Miss. Reshmi Debnath went to a

jungle nearby their residence at West Radhapur with intent to collect

firewoods. At that relevant point of time accused Rakhal Chandra Debnath was

waiting behind a bush. Suddenly accused Rakhal Chandra Debnath caught hold

the hands of her niece Miss. Sima Debnath with ulterior motive but somehow

Sima managed to escape from the hands of accused Rakhal Ch. Debnath by

giving nail bite. At the same time her daughter also came forward to rescue

Sima Debnath but suddenly accused Rakhal Ch. Debnath caught hold the

hands of her daughter and forcibly took her daughter to the nearby house of

accused. By this time Sima Debnath and Reshmi Debnath rushed to a house of

their village and reported the incident to some villagers when those villagers

accompanied with Sima and Reshmi visited the house of accused Rakhal Ch.

Debnath and on hearing the shouting of the local villagers accused Rakhal Ch.

Debnath released her daughter i.e. the victim from his house. Later on, her

daughter reported the incident to her and others after returning home. She

further stated that her daughter told her that accused Rakhal Ch. Debnath

touched her breast after taking her daughter to his house. Thereafter she laid

the FIR which was prepared with the help of her nephew Sri Partha Nath. She

put her signature on the ejahar marked as Exhibit-7/1. She further stated that

during investigation on 29-11-2020 the IO seized the original birth certificate

of her daughter i.e. the victim and her niece, Sima Debnath by preparing two

separate seizure lists and obtained her signatures on those seizure lists. The

witness identified her signature on those seizure list marked as Exhibit-1/3 and

Exhibit- 2/3.

During cross-examination, she stated that her daughter and her

niece used to visit that particular jungle occasionally for collecting firewoods.

Police examined her and recorded her statement. She did not tell IO that the

accused was waiting inside that jungle concealing himself beside a bush area.

She further admitted that the house of Sri Niranjan Nath, Sri Subrata Nath and

Sri Nunua Goala are situated adjacent to the house of accused Rakhal Ch.

Debnath. Nothing more came out relevant.

PW-12, Sri Ajit Kumar Nath deposed that the informant is his

wife. About 2 years back one day at about 04.00 pm his wife requested him

over phone to come residence forthwith as an unwanted incident was occurred.

He immediately came back and on the way while he reached near the house of

accused Rakhal Ch. Debnath he saw a large gathering in front of the house of

accused. There he found his wife Smt. Sabita Nath and being asked, Sabita

Nath told him that on the day in the afternoon his daughter i.e. the victim

along with her niece Miss. Sima Debnath and Miss. Reshmi Debnath went to a

nearby jungle for collecting firewoods when accused Rakhal Ch. Debnath

chased his daughter and nieces and somehow accused Rakhal Ch. Debnath

managed to detain his daughter and later on outraged her modesty by taking

her to the house of the accused. His daughter further informed him that

accused Rakhal Ch. Debnath touched the private parts of his daughter.

Thereafter his wife lodged an FIR against the accused.

During cross-examination he stated that there was a gathering of

at least 100 people. Nothing more came out relevant from his cross-

examination.

PW-13, Smt. Sanchita Nath is the IO of this case. She deposed

that on 27-11-2020 she was posted as SI of Police of Dharmanagar Woman

PS. On that day, Dharmanagar Woman PS Case No.29 of 2020 was registered

and the case was endorsed to her for investigation. After taking up the

investigation, she examined the victim and the informant of the case and

recorded their statements. She visited PO and prepared hand sketch map

caused arrest of accused Rakhal Ch. Debnath and after completion of

investigation, she laid charge-sheet against the accused. She further stated

that she arranged for recording the statement of the victim and witness Sima

Debnath in the Dharmanagar Court. She also arranged for medical

examination of the victim in the Dharmanagar Hospital.

During cross-examination, she stated that the PO is a jungle and

it is owned by one Karuna Nath. Further stated that the incident took place on

26-11-2020 at about 1.30 p.m and the information was received at P.S on 27-

11-2020 at 1830 hours and there was no explanation for the delay.

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

prosecution in respect of determination of the charge laid against the accused-

appellant by the Learned Trial Court below.

[9] I have heard arguments of both the sides at length and also gone

through the evidence on record very carefully. Admittedly, in this case, the

prosecution could not adduce the adjacent neighbours of the appellant to the

Learned Trial Court in support of the prosecution case whose houses are

nearby the residence of the accused-appellant. In this case, the charge was

framed against the appellant under Section 354 of IPC and also under Section

8 of the POCSO Act. So, considering the nature of the allegation we are to see

how far the evidence of the victim were relevant for conviction of the appellant

in this case. From the evidence on record, it appears that on the alleged day

the victim and her one cousin and another friend went to a nearby jungle

nearby the residence of the victim for collecting firewoods that time, the

appellant appeared therein and first of all caught hold the hand of Sima

Debnath but somehow she managed to escape from the clutch of the appellant

by giving bite injury to his hand and thereafter, when the victim came forward

to rescue her, that time, the appellant caught hold her hand and dragged her

to his house and behind the house the accused-appellant pressed the breast of

the victim and thus, outraged her modesty. To support the aforesaid story as

already stated, the prosecution has adduced in total thirteen numbers of

witnesses. PW-1, Miss Reshmi Debnath, PW-10- Miss. Sima Debnath and PW-

9, the victim were present to the PO at the time of alleged occurrence of

offence because except those three girls, no other witnesses were present to

the PO at the time of alleged occurrence. The other witnesses like PW-2, the

mother of Sima Debnath, PW-3, the mother of Miss Reshmi Debnath, PW-4,

Smti. Basumati Debnath in whose residence Reshmi Debnath entered soon

after the occurrence, PW-5, Smti. Prativa Nath in whose residence the witness

Sima Debnath i.e. the first victim entered soon after the occurrence, PW-6,

Smti. Aparna Nath who is the neighbouring lady who was also present to the

house of Prative Nath when the first victim Sima Debnath entered soon after

the occurrence and PW-11, Smti. Sabita Nath i.e. the informant the mother of

the victim. They are all hearsay witnesses because after the occurrence of

offence, these three girls narrated the entire episode to them regarding

commission of offence by the alleged accused-appellant. The victim and her

two friends out of them, one is her cousin who has very categorically stated

that on the alleged day when they were collecting firewood inside the jungle

that time, the appellant suddenly came out from the back side of a bush and

first of all caught hold Sima Debnath and when she managed to escape along

with Reshmi Debnath, that time, the victim came forward to rescue her and

immediately thereafter the appellant caught hold her and dragged her inside

his house and outraged her modesty. Those three witnesses were thoroughly

cross-examined by the accused-appellant. But their evidences could not be

demolished by the accused-appellant in this case. Admittedly, these three

witnesses are all minors so it is quite natural that there may be some

contradictions for omissions in their evidence but for those contradictions their

evidences cannot be brush aside because the appellant by the trend of cross-

examination could not raise any circumstance to disbelieve their evidence.

Other witnesses all though they were not present to the PO just at the time of

occurrence of offence but they narrated the incident after hearing the same

from those three girls including the victim who are present to the PO at the

time of alleged occurrence. The appellant also could not raise any doubt to

disbelieve their evidence. It is also on record that after the occurrence at the

instance of Sima Debnath and Reshmi Debnath some villagers rushed to the

residence of the appellant when after hearing the shouting of the villagers the

appellant released the victim. Admittedly, as already stated the neighbouring

house owners of the appellant were not produced by the prosecution before

the Learned Trial Court but for their non-production before the Court, it cannot

be said that the said prosecution case was doubtful.

[10] From the record it appears that there was some delay in lodging

the FIR by the informant but in a case of this nature where the chastity of the

victim is concerned, in a country like India it is often found that parents of the

victim in a case of this nature always feel insecured or due to social stigma

they always try to avoid to report the matter to the nearby police station. So,

here in the given case, it may so happen that due to such social stigma, the

delay occurred in lodging the FIR. Although, the prosecution before the

Learned Trial Court could not give any proper explanation of delay in lodging

the ejahar at Police Station. In the FIR which was remain un-rebutted by the

appellant it appears that in the ejahar it was also stated that the appellant also

committed illegal acts in future and for that, so many conciliation meetings

took place and there was case pending against him, although no such

explanation was given.

[11] In course of examination under Section 313 of Cr.P.C., the

appellant only denied the allegation of the prosecution, there was no such

explanation from the side of the appellant regarding the allegation leveled

against him by the prosecution before the Learned Court below. Even, the

victim and her niece before the Court of Learned Judicial Magistrate also

narrated the same incident and they identified their signatures on the

statement recorded by Learned Magistrate. The appellant in course of cross-

examination of the victim and her niece also could not make any effort to

disbelieve the statement on record of the victim and her niece recorded by the

Learned Judicial Magistrate under Section 164(5) of Cr.P.C. Admittedly in this

case, the prosecution did not adduce the Learned Magistrate who recorded the

statement of the victim and it is also the settled position of law that for proving

the statements the presence of Magistrate who recorded the statement of the

victim or other witnesses is not required to be examined. Here in the given

case, since the victim and her niece admitted that they were produced before

the Learned Court and their statements were recorded and they identified their

signatures which remain unchallenged by the appellant. So, for non-

examination of the Learned Magistrate, there is no scope to disbelieve the

statements on record of the victim and his niece.

[12] Furthermore, regarding minority of the victim and her niece there

was no contradictory evidence from the side of the appellant on record to

substantiate that the relevant provision of POCSO Act would not attract in this

case. Admittedly, there was some delay in lodging the FIR because the alleged

incident according to IO took place on 26.11.2020 at about 1.30 p.m. and the

case was registered on 27.11.2020 at about 18.30 hrs. and the IO herself

admitted that there was no explanation regarding delay in lodging the FIR.

With regard to that, Hon'ble the Supreme Court of India in Tulshidas

Kanolkar versus State of Goa reported in (2003) 8 SCC 590 the said Apex

Court in para Nos.5 & 6 observed as under :

"5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of

rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle.

6. Non-examination of some persons per se does not corrode vitality of prosecution version, particularly when the prosecutrix has, notwithstanding her mental deficiencies, withstood incisive cross- examination pointed to the appellant as the perpetrator of the crime. The plea of consent is too shallow to even need detailed analysis or consideration. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be a conscious and voluntary act. There is gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. A girl whose mental faculties are undeveloped, cannot be said in law, to have suffered sexual intercourses with consent."

In State of Himachal Pradesh versus Prem Singh reported in

(2009) 1 SCC 420 the said Apex Court in para No.6 observed as under :

"6. So far as the delay in lodging the FIR question is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR. In that score, learned counsel for the appellant is right that the High Court has lost sight of this vital distinction."

[13] So, after hearing both the sides at length and also after going

through the principles of law laid down by the Hon'ble Supreme Court in

aforenoted cases it appears that the Learned Court below after elaborate

discussions of the evidence on record of the prosecution rightly and reasonably

found the appellant to be guilty and convicted him accordingly and as such,

being an appellate forum this Court does not find any scope to interfere with

the judgment delivered by the Learned Special Judge (POCSO) in the given

case and the arguments raised by Learned counsel appearing for the appellant

does not create any confidence to the mind of the Court to acquit the accused-

appellant from the charge of the case.

[14] Further, on perusal of the judgment of the Learned Court below it

appears that in the given case Learned Court below found the appellant guilty

for the commission of offence punishable under Section 354 of IPC and also

under Section 8 of POCSO Act and considered him in both the sections which in

my considered view was not proper. In view of Section 42 of the POCSO Act

considering the nature of the offence here in the given case the Learned Court

below could convict the appellant on either of any of the offences. Since the

victim was minor and the ingredients of Section 7 of the POCSO Act was duly

proved against him. So, in my considered view Learned Court below only could

convict the appellant under Section 8 of the POCSO Act without imposing any

punishment under Section 354 of IPC. For the sake of convenience, I would

like to refer herein below the relevant provision of Section 7 & Section 8 of the

POCSO Act which provides as under :

"7. Sexual assault.- Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.

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 find."

From the aforesaid provisions of law and also after going through

the evidence on record it appears that in the given case the prosecution has

been rightly and reasonably has been able to prove the charge leveled against

the appellant under Section 8 of the POCSO Act which the Learned Court below

awarded against him and this Court concurs the said finding of the Learned

Court below accordingly.

[15] In the result, the appeal filed by the appellant is hereby dismissed

on contest.

The judgment and order of sentence and conviction delivered by

Learned Special Judge (POCSO) dated 27.07.2023 delivered by Learned

Special Judge (POCSO), North Tripura, Dharmanagar in connection with Case

No.Special (POCSO)03 of 2021 is hereby upheld and modified to the extent