Tripura High Court
Md. Rushan Ali @ Rushan Uddin @ Arian vs The State Of Tripura on 25 September, 2024
Author: T.Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
Crl.A(J) 55 of 2023
Md. Rushan Ali @ Rushan Uddin @ Arian
Aged about 20 years
S/o Md. Chayed Ali
Resident of Jubarajnagar, Ward No.6
PS- Dharmanagar, District- North Tripura
------ Appellant(s)
Versus
The State of Tripura
---Respondent(s)
For Appellant (s) : Mr. S. Lodh Advocate.
For Respondent(s) : Mr. S. Ghosh, Addl. PP.
Date of hearing and date of
judgment and order : 25.09.2024
Whether fit for reporting : No
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order (Oral)
T.Amarnath Goud, J
Heard Mr. S. Lodh, learned counsel appearing for the appellant also heard
Mr. S. Ghosh, learned Addl. PP appearing for the state-respondent.
[2] This is a criminal appeal under section 374(2) of the Code of Criminal
Procedure, 1973, against the impugned Judgment of Conviction and Sentence dated
29.08.2023, passed by the Ld. Special Judge (POCSO), North Tripura, Dharmanagar, in
SPECIAL (POCSO) 14 of 2022, whereby the Ld. Special Judge (POCSO), North
Tripura, Dharmanagar, convicted the appellant for committing offence, punishable under
Sections 376(2)(m) of Indian Penal Code and under Section 4 of the Protection of
Children from Sexual Offences Act, 2012, and sentenced him to suffer Imprisonment for
remainder of his natural life and to pay fine of Rs. 10,000/- (Rupees Ten thousand) only
in default to suffer imprisonment for 6 (six) months for committing offence, punishable
under Section 4(2) of theProtection of Children from Sexual Offences Act, 2012 and also
sentenced him to suffer Imprisonment for remainder of his natural life and to pay fine of
Rs. 10,000/- (Rupees Ten thousand) only in default to suffer imprisonment for 6 (six)
months for committing offence, punishable under Section 376(2)(m) of the Indian Penal
Code.
[3] The prosecution case in brief, is that on 29-07-2022 at about 1200 hours the
victim in this case who is a 9 years old girl and a student of Class-III in Jubarajnagar
Madrasha School was alone in her house at Jubarajnagar. During that time accused Md.
Rushan Ali @ Rushan Uddin @ Arian who is her cousin brother came to her house and
gave her a false information that her mother has asked her to bring back the goat from the
nearby segun garden and on that pretext the accused accompanied the victim and on
reaching near a jungle forcefully committed rape upon the victim while holding her
mouth with his hand. The victim sustained severe bleeding injuries and she returned back
home and told her mother about the incident. She was also taken to Dharmanagar District
Hospital on that day and remained under treatment for a long time.
[4] The informant Sufiyara Begam who is mother of the victim lodged an
ejahar with Dharmanagar Woman PS regarding the incident and based on the ejahar a
specific case was registered and the matter was investigated and on completion of
investigation the IO submitted charge-sheet against the accused under Section 376(2)(m),
376AB of IPC and under Section 4 of the POCSO Act.
[5] On receipt of the charge-sheet the court below took cognizance of offence
and proceeded with the case and in course of the proceeding prosecution papers were
supplied to the accused. Thereafter both sides were heard and on finding prima- facie
incriminating evidence under Section 376(2)(m) of IPC and under Section 4 of the
POCSO Act a formal charge was framed against the accused and the same was read over
and explained to him to which he pleaded not guilty and claimed to be tried.
[6] The prosecution to bring home the charges under the aforesaid provisions
of IPC and POCSO Act adduced as many as 21 witnesses. After closure of the
prosecution evidence, the accused was examined under Section 313 of Cr.P.C wherein he
stated that the prosecution case is false and declined to adduce any witness from his side.
[7] After hearing both sides, the learned Court below delivered the judgment
and order of conviction and sentence in the following manner:
Having considered the aforesaid act of the convict, this Court is of the
opinion that the convict deserved to be sentenced to maximum punishment for the
offence.
Section 4(2) of the POCSO Act says that who ever commits penetrative
sexual assault on a child below 16 years of age shall be punished with
imprisonment for a term which shall not be less than 20 years but which may
extend to imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person and he is also liable to fine.
Section 376(2) of IPC prescribes punishment with rigorous
imprisonment for a term which shall not be less than 10 years but which may
extend to imprisonment for life which shall mean imprisonment for the remainder
of natural life of that person and shall also be liable to fine.
As stated above the offence committed by the convict was inhuman and
barbaric and the convict is liable to be punished with the maximum sentence.
Office of the District &
Accordingly, convict Md. Rushan Ali @ Rushan Uddin @ Arian is
sentenced to suffer imprisonment for the remainder of his natural life under
Section 4(2) of the POCSO Act. The convict is also sentenced to pay fine of
Rs.10,000/-(ten thousand) under Section 4(2) of the POCSO Act failing which he
shall have to suffer imprisonment for a further period of 6(six) months.
The convict Md. Rushan Ali @ Rushan Uddin @ Arian is also sentenced
to suffer imprisonment for the remainder of his natural life under Section
376(2)(m) of the IPC. The convict is also sentenced to pay fine of Rs.10,000/-
(ten thousand) under Section 376(2)(m) of the IPC failing which he shall have to
suffer imprisonment for a further period of 6(six) months.
The fine money if realized shall be paid to the victim as compensation for
her rehabilitation.
Both the sentences of imprisonment shall run concurrently.
[8] Being aggrieved by and dissatisfied with the judgment and order of
conviction, the present appeal has been preferred by the appellant.
[9] It is contended by the counsel for the appellant that on a conspectus of the
evidence on record, and the findings of the Ld. Court below, it transpires that the
statements of the prosecution witnesses are contradictory to each other, and it is also
found that all the prosecution witnesses are tutored, and made untrue statements, and
hence, convictions ofthus, the impugned Judgment is liable to be set aside.
[10] It is further contended by the counsel for the appellant that Ld. Court below
committed serious error in accepting the age of the victim. On bare perusal of the written
complaint, it is alleged that the victim was a student of Yuvarajnagar Madrasa School. To
prove the age of the alleged victim, prosecution did not produce the School Certificate of
first instance. It is trite law that for proving the age of the victim, prosecution has to bring
on record the School Certificate on first instance of the victim. As prosecution did not
produce the School Certificate, it is submitted that prosecution has failed to prove the age
of the victim. Learned Court below failed to appreciate the same and passed the
impugned judgment and hence, the same is liable to be interfered with.
[11] Moreover, learned Court below convicted the appellant for committing
offence punishable under Section 376(2)(m) of IPC and Section 4(2) of POCSO Act and
passed sentence in both the Sections. Learned court below failed to appreciate the
mandate of Section 42 of the POCSO Act and sentenced the appellant in both the
Sections, and hence, the same is liable to be interfered with.
[12] On the other side, Mr. S. Ghosh, learned Addl. PP appearing for the state-
respondent has vehemently opposed such statement and contended before this court that
the appellant being at his tender age cannot be given any concession. He further
contended that the impugned order as passed by the learned court below is just and
proper and further prayed to dismiss the appeal.
[13] Having perused the record and also having considered by the submission as
advanced by the counsel for the parties, this Court is of the opinion that it cannot be
denied that the crime did not happen on the fateful day. It is evidence from the record that
at the time of attempting the crime, the convict appellant was 20 years of age. Since he
has been convicted and he is bound to serve the punishment as imposed by the learned
court below to suffer imprisonment for the remainder of his natural life. It cannot be
neglected that he was merely 20 years of age when he committed the crime. Though the
magnitude of the crime cannot be seen leniently but this Court also considering the age of
the convict appellant and biological aspect of the convict appellant reduces the
punishment to 20 years from suffering imprisonment for the remainder of his natural life.
This court also opines that no punishment is enough to remove the agony faced by the
sufferer this court cannot shut its eyes to the possibilities that the perpetrator may learn to
respect and dignity of others when he has completed serving his punishment for long 20
years. Therefore the convict appellant is now sentenced to suffer 20 years of
imprisonment under Section 376(2) of IPC as well as under Section 4(2) of the POCSO
Act. Both the punishment shall run concurrently. In so far as fine amount is concerned,
he shall pay Rs.10,000/- towards fine.
[14] With the above observation and direction, the present appeal stands
disposed of modifying the impugned order dated 29.08.2023, passed by the Ld. Special
Judge (POCSO), North Tripura, Dharmanagar, in SPECIAL (POCSO) 14 of 2022 to the
extent as indicated above.
[15] Registry is directed to mark a copy of this judgment and order to the
Superintendent, Kendriya Sansodhanagar, Tripura at the earliest.
B.Palit, J T. Amarnath Goud, J
Dipak
