Tripura High Court
Shri Popy Debnath@Pappa vs The State Of Tripura on 10 September, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 14
HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.49 OF 2023
Shri Popy Debnath@Pappa,
Son of Shri Patan Debnath,
Aged about 25 years resident of East
Ratacheera, P.S.- Farikroy,
District- Unakoti Tripura.
......Appellant(s)
Versus
The State of Tripura
.....Respondent(s)
For the Appellant(s) : Mr. P.K. Biswas, Sr. Advocate.
Mr. R. Das, Advocate.
Mr. R. Nath, Advocate.
Mr. P. Biswas, Advocate.
For the Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of hearing and delivery of
Judgment & Order : 10.09.2024
Whether fit for reporting : YES/NO.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
J U D G M E N T & O R D E R(ORAL)
This present criminal appeal has been filed
against the impugned Judgment of Conviction and Sentence
dated 29.08.2023, passed by the learned Special Judge (POCSO),
Unakoti District, Kailasahar, in case No. Special (POCSO) 12 of
2021, whereby the learned Special Judge (POCSO), Unakoti
District, Kailasahar, convicted the appellant for committing
offence punishable under Sections 376(1) & 342 of IPC or
alternatively under Section 6 of the POCSO, 2012, and sentenced
him to suffer Rigorous Imprisonment for a term of 20 (twenty)
years and to pay fine of Rs. 10,000/- (Rupees Ten thousand)
only for committing offence, punishable under Section 6 of the
POCSO, 2012. Further sentenced him to suffer Simple
Imprisonment for a term of 1 (one) year, and to pay a fine of Rs.
500/- (Rupees five hundred) only for committing offence,
punishable under Section 342 of the IPC.
2. The prosecution case in brief is that the informant
of the case i.e. P.W.-1 lodged a written complaint before the
Officer-in-Charge of Fatikroy police station on 24.04.2021
alleging inter alia that his minor daughter was missing from
08:00 p.m., of 21.04.2021. He also alleged that at that time, his
wife was cooking food and his daughter was reading in the room
and when his wife came to the room, she found that his daughter
was missing. He alleged that thereafter they started searching for
his daughter and came to know from neighbour that his daughter
was kidnapped by the appellant against her will.
3. On receipt of this written complaint, police
registered a case vide Fatikroy PS case No. 18 of 2021 under
Section 366-A of the Indian Penal Code, and subsequently
Section 376(3)/109/212/242 of IPC and Section 6 of POCSO Act
was added. After registration of the case, police started
investigation and recovered the victim, and also arrested the
appellant. Thereafter, police filed charge sheet against the
appellant for allegedly committing offences punishable under
Sections 366-A/376(3)/342 of the Indian Penal Code and Section
6 of the POCSO Act, and also filed charge sheet against his father
of the appellant, Sri Patan Debnath for committing offences
punishable under Sections 366-A/109/120-B/212 of the Indian
Penal Code vide Fatikroy PS charge sheet No. 21 of 2021 dated
30.06.2021.
4. After receipt of the charge sheet, learned Court
below took cognizance of the offences, punishable under Sections
366-A/376(3) and 342 of the IPC & Section 6 of POCSO Act
against the appellant and also under Sections 366-A/109/120-
B/212 of the IPC against his father. Thereafter, incriminating
documents were supplied to the appellant and his father in
compliance with the provisions engrafted under Section 207 of
Cr.P.C. Thereafter, the learned Court below framed charge
against the appellant for committing offences punishable under
Sections 366-A/376/342 of the IPC and Section 6 of the POCSO
Act, and also framed charge under Section 109/376/346-
A/342/120-B/212 of the IPC against his father.
5. To prove the case, the prosecution side examined
as many as 28 (twenty-eight) witnesses, and on the other hand,
from the side of the defense, they did not adduce any witness.
After hearing both the sides, learned Special Judge (POCSO),
Unakoti District, Kailasahar, vide impugned judgment dated
29.08.2023 convicted the appellant as indicted above.
6. Being aggrieved and dissatisfied with the
impugned Judgment of Conviction and Sentence dated
29.08.2023, passed by the learned Special Judge, Unakoti
District, Kailasahar, in SPECIAL (POCSO) 12 of 2021, the
appellant has preferred this instant criminal appeal.
7. Heard Mr. P.K. Biswas, learned Sr. counsel
assisted by Mr. R. Das, learned counsel, Mr. R. Nath, learned
counsel, and Mr. P. Biswas, learned counsel appearing for the
appellant as well as Mr. R. Datta, learned P.P., appearing for the
State-respondent.
8. Mr. P.K. Biswas, learned Sr. counsel appearing for
the convict-appellant submits that the victim girl in her
statement given under Section 164 of Cr.P.C., stated that she
was in relation with the appellant and she called the appellant
and asked him to pick her up. Thereafter, she went out and the
appellant picked her up. There is no evidence to prove that there
was was sexual relation between the girl and the boy. In the
forensic report of the victim girl, it is stated that there is a sign of
penetration but no stains were found.
9. On the other hand, Mr. R. Datta, learned P.P.,
appearing for the State-respondent opposed the submission of
the learned Sr. counsel appearing for the convict-appellant and
stated that the Judgment and Conviction as passed by the Court
below is just and proper and the same needs no further
interference.
10. P.W.-1, i.e. the father of the victim girl is the
informant of this case. On 21.04.2021, he got the information
from his son that his daughter was missing. Thereafter, he tried
to search for her daughter with all his possible source but he
failed. He lodged FIR after 2(two) days. One of his relatives
wrote the ejahar on his behalf. He further stated that on the next
day of her missing, he had been shown by one of his relatives a
joint picture of his daughter wearing vermilion on her forehead
and bungle(Sankha) along with the appellant which went viral on
social media. He did not ask his daughter anything about the
incident.
In his cross-examination, he stated that his grandson
Sayan Data showed him the joint picture of her daughter along
with the appellant in his phone. But he did not know his mobile
phone.
11. P.W.-3, the mother of the girl deposed that on
21.04.2021, at night, her daughter sought dinner from her. After
arranging the same, when she called her, she found her missing
from the Court. She informed her husband as well as her son. On
the next day, they lodged the case with the police. She also
stated that after around three days, he got a joint photo of the
accused-appellant and her daughter wearing bungle (sakha) and
using vermilion on her forehead on social media. After three
days, police recovered her daughter.
In her cross-examination, she stated that she did
not hear any sound of scuffling or any alarming sound of her
daughter in her room when she was in the kitchen. She found a
joint picture of her daughter and the appellant on her son's
mobile. Her son and her husband's mobile were not given to the
police.
12. P.W.-4, the victim girl stated that she studied in
Hajibari H.S. School at Class-X. She deposed that on 21.04.2023
at night which she was going to attend her nature's call and
going to toilet, suddenly, someone gagged her mouth. She lost
her senses. On the next day, he regained her senses and found
herself in the house of the appellant's sister. She found that
someone put vermilion on her forehand and also bungle(sankha)
into her hands. The appellant had also committed sexual
intercourse with her against her will. After three days, the father
of the appellant took her to her house.
In her cross-examination, she stated that her
toilet is situated around 20 cubits from their kitchen. There is no
fencing in her house. She did not remember whether she stated
to Darogabadu that the appellant gagged her mouth and took her
away. She did not inform her parents during those three days
when she was with the appellant. On 23.04.2021, she was
brought to her house. She also stated that on being tutored by
the appellant she stated to Darogababu that on 21.04.2023 at
around 8.00 A.M., the appellant requested her over the phone to
meet him in front of her house otherwise, he would die.
13. P.W.-23 was posted as Senior Scientific Officer
Cum Assistant Chemical Examiner, Government of Tripura. He
opined that seminal stain/spermatozoa/blood stain of human
origin could not be detected in the exhibits.
In her cross-examination, the witness stated that
spermatozoa was absent in the Exhibit so DNA profile test was
not conducted.
14. P.W.-27 who was posted as WSI of police at
Kumarghat P.S. examined the victim and recorded her statement
under Section 161 of Cr.P.C.
In her cross-examination, she stated that the
victim did not state to her that she was kidnapped from her
washroom by pressing her mouth and the victim became
senseless due to this, and the subsequent day, she regained her
sense. The victim did not state to her about who was present at
the time of her marriage. The victim also did not state to her that
after regaining her senses, someone had put vermillion on her
forehead. The victim did not state that when she was going to
attend her nature's call, at that time, the appellant gagged her
mouth and took her away.
15. P.W.-28 is the medical officer at Kumarghat CHC.
She conducted medico-legal examination of the victim. She
opined in report that "There are signs of penetration of vagina
though swab analysis report is negative for seminal fluid."
In her cross-examination, she stated that the
hymen of a child can be ruptured or torn due to various reasons
cycling, swimming and jumping. SFSL report was negative in the
instant case.
16. To properly adjudicate the matter let us also
produce the relevant portion of the statement given by the victim
girl under section 164(5) of Cr.P.C.:-
" I was in a relation with a guy named Bappa
Debnath. I called Bappa our phone and asked him to pick me up.
Thereafter I went out on the road and he picked me up."
17. Heard and perused the evidence on record.
18. This appeal arises from the Judgment and Order
of Conviction dated 29.08.2023. The appellant has challenged the
said Judgment claiming that the prosecution's case is fraught
with inconsistencies, and the evidence presented does not
conclusively prove the guilt beyond a reasonable doubt.
19. The case of the prosecution, as presented,
revolves around the accusation that the appellant had forcefully
kidnapped and confined the minor victim, and subjected her to
sexual assault. It is alleged that on 21.04.2021, the appellant
coerced the victim and took her against her will. The complaint
was lodged by the victim's father i.e. PW-1, alleging that his
minor daughter was abducted.
20. Key prosecution witnesses i.e. PW-1 and PW-2,
the parents of the victim, in their deposition, have testified that
they saw photographs of their daughter with the appellant on a
social media platform, specifically on the phone of one of their
relatives. In these photographs, their daughter and the appellant
were seen together with the victim wearing vermilion (sindoor)
and bangles, which traditionally signifies marriage.
21. PW-27, i.e. the witness who examined the victim
after the alleged incident testified that the victim did not mention
any forcible abduction or sexual assault. This key piece of
testimony contradicts the victim's later deposition in court,
wherein she claimed that she was forcibly taken by the appellant.
22. The forensic expert (PW-28), who examined the
swabs collected during the medical examination, testified that
there were no signs of vaginal penetration, and the swab analysis
was negative for seminal fluid. This finding further weakens the
prosecution's case of sexual assault.
23. A critical aspect of this case is the statement
made by the victim under Section 164 of the CrPC before the
Magistrate. In this statement, the victim admitted that she was in
a relationship with the appellant and that on the day of the
incident, she had called him to pick her up. She willingly left her
home and was not taken against her will. This statement directly
contradicts her later deposition in Court, wherein she alleged
forceful abduction by the appellant. The inconsistency between
the two statements casts significant doubt on the veracity of the
victim's claim of forceful abduction and sexual assault.
24. The key issue before this Court is whether the
prosecution has proved beyond a reasonable doubt that the
appellant committed the offenses of kidnapping and sexual
assault. After a careful examination of the evidence on record,
this Court finds several material contradictions that raise doubts
about the prosecution's case.
25. The victim's statement under Section 164 Cr.P.C.
indicates that she willingly went with the appellant, while her
deposition in Court claims forceful abduction. Such contradictions
go to the heart of the prosecution's case and cannot be ignored.
The prosecution has failed to explain this discrepancy
convincingly.
26. The evidence presented by PW-27 and PW-28 do
not support the allegations of sexual assault. The lack of any
signs of penetration and the negative swab report for seminal
fluid further weaken the prosecution's case.
27. The testimony of the victim's parents, PW-1 and
PW-2, also raises doubts. While they claimed to have seen
photographs of their daughter with the appellant, signifying a
relationship between them, there is no explanation for the delay
in filing the complaint or any immediate action taken after seeing
those photographs. This behavior is inconsistent with their claim
that their daughter was kidnapped.
28. It is a well-settled principle of criminal
jurisprudence that the prosecution must prove its case beyond a
reasonable doubt. Any doubt regarding the guilt of the accused
must result in acquittal. In the present case, the prosecution has
failed to establish the charges against the appellant with
certainty. The contradictions in the victim's statements, the lack
of medical evidence, and the unexplained behavior of the victim's
parents all contribute to creating reasonable doubt about the
guilt of the appellant.
29. Further, to prove the age of the alleged victim,
the prosecution side produced the Admission Register of
Ratacherra High School(Exbt-7), the School Certificate(Exbt-9)
issued by P.W.-12 and Authentication of School Certificate(Exbt-
10). On the conjoint reading of the aforesaid three documents, it
is found that the School Register which was placed by the
prosecution is of Ratacherra High School, and from the form of
the School Certificate, it is revealed that the same was issued by
the Hajibari Class XII School. On bare perusal of the letter of
Authentication of the School Certificate of the victim date
01.05.2021, it is revealed that the Date of Birth was recorded as
per the Certificate of Anganwadi Centre, Tilagaon, but the
prosecution did not produce any evidence as to how Anganwadi
center recorded the Date of Birth of the victim on 20.09.2006.
Further, the parents of the victim i.e P.W.-1 and P.W.-2 did not
say anything about the Date of Birth of the victim. The above
facts create doubt about the documents of Birth Certificate
produced by the prosecution and the age of the victim and none
were examined by prosecution to prove the date of birth certificate.
30. In light of the above discussion, this Court finds
that the prosecution has failed to prove the charges against the
appellant beyond a reasonable doubt. Further, the documents of
birth certificate i.e. Exbt-P-8, Exbt-P-9 and Exbt-10 were not
properly examined as such the age of the girl is not proved. The
inconsistencies in the evidence presented by the prosecution,
coupled with the lack of medical corroboration, lead this Court to
conclude that the conviction of the appellant cannot be sustained.
31. Accordingly, the appeal is allowed. The Judgment
and Order of conviction passed by the Learned Special
Judge(POCSO), Unakoti District, Kailasahar in
SPECIAL(POCSO)12 of 2021 dated 29.08.2023 is hereby set
aside. The appellant is acquitted of all charges. The appellant
shall be released forthwith unless required in connection with any
other case.
32. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2024.09.13
SINGHA 12:21:38 +05'30'
