Tripura High Court
Sri Ranjit Debroy Alias Dundu vs The State Of Tripura on 26 September, 2024
Page 1 of 11
HIGH COURT OF TRIPURA
AGARTALA
Crl. A(J) No.45 of 2023
Sri Ranjit Debroy alias Dundu
Son of Lt. Ratish Debroy,
of Rabindranagar,
P.S- Kanchanpur, District- North Tripura.
...............Appellant(s).
Versus
The State of Tripura,
Represented by the Ld. Public Prosecutor,
High Court of Tripura.
...............Respondent(s).
For Appellant(s) : Ms. R. Guha, Advocate.
: Ms. S. Nath, Advocate.
For Respondent(s) : Mr. R. Datta, P.P.
Date of Hearing : 22.07.2024
Date of Judgment : 26/09/2024
Whether fit for reporting: No
_B_E_ F_O_R_E_
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
The appeal arises from the judgment of conviction and
sentence dated 24.05.2023 passed by Ld. Special Judge (POCSO), North
Tripura District, Dharmanagar in Special (POCSO) Case No. 46 of 2019.
[2] By the impugned judgment and sentence, the appellant was
convicted under Sections 448 and 354 of Indian Penal Code (for short
'IPC') and also under Section 8 of Protection of Children from Sexual
Offences Act (for short POCSO Act). Under Section 448 of IPC, he has
been sentenced to suffer rigorous imprisonment for one year and to pay
a fine of Rs.500/- and for both Section 354 of IPC and Section 8 of
POCSO Act, he was sentenced to suffer rigorous imprisonment for 5
years and to pay a fine of Rs.500/- each for both the offences and in
default of payment of fine, he was further directed to suffer
imprisonment for one month on each count of sentences. All the
sentences were directed to run concurrently.
[3] The prosecution came up with the case that on 14/09/2019
victim (aged about 15 years) was sleeping alone in her house and at
that time, the appellant entered there, forcefully laid on her and
sexually abused her. Hearing her outcry, one neighbouring lady namely,
Smt. Kuiabati Reang [PW-6] and others came there and the appellant
also attacked and threatened them.
[4] The FIR was lodged with similar allegations by the mother of
the victim, Smt. Karanbati Reang [PW-4] which was registered under
Section 448/354 IPC and under Section 12 of POCSO Act, and after
investigation the investigating officer (PW.11) laid the charge sheet
under Sections 448, 354, 506 of IPC and under Section 12 of the POCSO
Act, 2012. However, the charges were framed by Ld. Trial Court under
Sections 448 and 354 of IPC and also under Section 8 of the POCSO Act.
The appellant denied the charges and thereafter, total of 11 witnesses
were examined by the prosecution. The defence did not adduce any
evidence.
[5] Ms. R. Guha, learned counsel and Ms. S. Nath, learned
counsel for the appellant, argued that by seizure list dated 18.10.2019
the birth certificate and the Aadhaar card of the victim were seized but
seizure list was silent about the place of the seizure and even those
documents were also not proved into evidence during trial. Next points
as were raised by learned counsel were that there was unexplained
delay of three days in lodging the FIR which created further doubt about
the veracity of the case and that the names of the victim and her
mother were reflected in different styles in different places such as in
the FIR, in the statement of victim recorded under Section 164 of
Cr.P.C. etc. and there were also discrepancies in the evidence of
witnesses on material points, more particularly, in the evidences of Smt.
Kuiabati Reang [PW-6] and Smt. Bajanbati Reang [PW-8].
[6] Learned counsel further argued that the brother of the
victim who would reside in the same house was also not examined and
when the prosecution came up with the story that just prior to the
incident, the minor girl was sleeping in the room, the normal
presumption would be that door was locked from inside, but there was
no evidence as to how the appellant had entered into said room by
opening the door. More so, motive or mens rea of the crime was also
not established. Learned counsel also pointed out that no medical
examination report was proved into evidence, though according to
victim, her medical examination was done by a physician. The last point
as was raised by learned counsel for the appellant was that the victim in
her evidence named the miscreant to be 'Ranjit Debroy' whereas PW.6
stated the name of the miscreant to be 'Dundu' but there was no
evidence that the appellant Ranjit Debroy was actually Dundu and,
therefore, he could not be held responsible for the alleged offence.
[6] Learned P.P., however, argued that nowhere the appellant
had challenged that his name was not Dundu and in the FIR also, it was
specifically mentioned that his name was Ranjit Debroy alias Dundu.
Learned PP further submitted that the mother of the victim in her
evidence had stated that the age of the victim was 15 years at the
relevant point of time which was also not denied by the appellant during
cross-examination of the witness and evidence of the victim was also
not confronted about her age. Therefore, the prosecution successfully
proved the age of the victim. Learned PP also relying on a decision of
the Apex Court in Rajkumar vs. State of Madhya Pradesh, (2014) 5
SCC 353 submitted that during examination under Section 313 Cr.P.C.
the accused did not furnish any explanation regarding the incriminating
material brought against him and, therefore, adverse inference would be
drawn against him.
[7] Learned PP further referring to the provision of Section 29 of
POCSO Act submitted that the appellant failed to discharge his onus in
rebutting the statutory presumption raised under Section 29 of the Act.
According to him, the judgment of the Trial Court was sound and well
reasoned requiring no interference.
[8] While taking into consideration the submissions of both the
parties and traversing the record, it is noticed that out of total 11
witnesses examined by prosecution, the victim herself is the sole
witness of the incident and hearing her outcry, Smt. Kuiabati Reang
[PW-6], Smt. Bajanbati Reang [PW-8], Smti Anita Reang [PW-9] and
Smt. Manjuri Chakma [PW-10] came to the spot just after the incident.
[9] The victim [PW-5] stated that leaving her alone in the house
her mother went to collect vegetables in the surrounding area and at
around 10/11 A.M. she was sleeping alone in her dwelling hut and at
that time, the appellant, Ranjit Debroy suddenly entered there, caught
hold of her and tried to do a sexual act by touching her breast after
lying upon her. She also stated that the appellant had gagged her
mouth but somehow she managed to shout and hearing the same, Smt.
Kuiabati Reang [PW-6] with others came there and the appellant fled
away and thereafter, she narrated the incident to those persons. In her
cross-examination she stated that after two days of incident police
recorded her statement and her mother lodged the FIR immediately
after the incident. There was no further cross-examination of the victim
except some denials.
[10] The PW.4 (mother of the victim) stated that at the time of
the incident she was not in her house and the appellant committed such
misdeeds while the victim was alone in the house and thereafter, she
lodged the FIR. According to her, the birth certificate and the Aadhaar
card of the victim were seized by police during investigation and later on
same were released on bail in her favour.
[11] Smt. Kuiabati Reang [PW-6], another important witness in
her evidence, stated that on the relevant date of incident, the mother
was not in the house and the victim came to their house and after
spending some time with her, she returned to her home stating that she
would go for a sleep. After some while, she heard shouting of the victim
and thereafter, she along with Baijayanti and Anita Reang rushed to the
house of the victim and found Dundu there in the dwelling hut of the
victim, and Dundu also threatened them with dire consequences on their
arrival there. According to this witness, the victim at that time told them
that while she was sleeping Dundu appeared there, caught hold of her
on her bed, gagged her mouth and tried to do sexual act with her but
somehow she managed to raise alarm. In her cross-examination, she
confirmed that her house was situated adjacent to the house of the
victim. She also stated that the victim had two brothers and the younger
one would live with the victim and her mother in the same house. One
denial was given by the defence to the witness that Ranjit Debroy @
Dundu (underscored emphasised) never entered into the dwelling hut of
the victim and never tried to do any sexual act with her.
[12] As it appears, though Smt. Kuiabati Reang [PW-6] was not
the eyewitness of the occurrence but she corroborated with the victim
on material points as to what the victim had divulged to her just after
the incident and she also found the appellant inside the hut of the
victim. Though learned counsel of the appellant argued that the brother
of the victim was not examined but when it was established in the
evidence that the victim was alone in the house, such non-examination
of brother was not much significant.
[13] Smt. Bajanbati Reang [PW-8] stated that about one year
and few months ago, one day, hearing the hue and cry of Smt. Kuiabati
Reang, she went to her house but Kuiabati was found in the house of
the victim and there she learnt that appellant had caught hold of the
hand of the victim with ill motive and, therefore, she was crying and
Miss Anita Reang [PW-9] and Smt. Manjuri Chakma [PW-10] also came
to the spot. She further stated that the appellant threatened them with
dire consequences and fled away and he was in drunken condition and
was using filthy words. Except the denial there was no cross-
examination of this witness.
[14] The appellant was absent in the court when the victim as
well as Smt. Kuiabati Reang [PW-6] were examined by the prosecution
and, therefore, they lost the scope to identify the appellant in the court.
But both of them stated that they could identify him. Therefore, Smt.
Kuiabati Reang [PW-6] though stated the name of the miscreant to be
'Dundu' could not get the scope to identify said Dundu in the Court,
otherwise, it would be clear to the Court as to whether she was
identifying the appellant as Dundu or not. The appellant cannot now be
allowed to take benefit of his own fault.
[15] Learned counsel of the appellant tried to show a discrepancy
that Smt. Kuiabati Reang [PW-6] had stated that she along with Smt.
Bajanbati Reang [PW-8] went to the house of the victim hearing her cry,
whereas Smt. Bajanbati Reang [PW-8] stated that she first went to the
house of Smt. Kuiabati Reang [PW-6] and then to the house of victim,
where she found Smt. Kuiabati Reang [PW-6] available. Such
discrepancy appears to be very minor. It is clearly established from the
evidence of all these witness that the appellant was found in the house
of the victim at that material time.
[16] Miss Anita Reang [PW-9] stated that the victim was her
friend and on the relevant date, hearing chaos coming from the house of
the victim, she went there and found the appellant was unnecessarily
using slang languages to the persons present there and also threatened
them with dire consequences. She also heard the appellant to give
threat to the victim to cause sexual harassment and even he disrobed
himself and showed his private part to the persons present there. The
fact of giving threat to the victim was not available in her previous
statement recorded under Section 161 Cr.P.C. and except that fact,
there was no other cross examination of this witness.
[17] Manjuri Chakma [PW-10] stated that about one year and
two months ago, hearing chaos, she went to the house of the victim and
found the appellant Ranjit Debroy unnecessarily abusing the people
gathered there. She again said that Ranjit Debroy was not known to
her. Therefore, her such evidence is self-contradictory and not reliable.
[18] From the evidence of the victim, what emerges is that she is
a very trustworthy and credible witness who could not be shaken during
her cross-examination on material points and, therefore, there is no
reason to discard her evidence. It is well settled that on the basis of sole
testimony of the victim/prosecutrix, conviction can be sustained if her
evidence is found to be trustworthy and credible. In this contexts, the
Apex Court in the case of State of Punjab vs. Gurmit Singh &
Ors.,(1996) 2 SCC 384 at paragraph nos.8 and 21 observed as
follows:
"8. ......... The courts must, while evaluating
evidence, remain alive to the fact that in a case of rape,
no self-respecting woman would come forward in a court
just to make a humiliating statement against her honour
such as is involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in
the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should find
no difficulty to act on the testimony of a victim of sexual
assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
corroboration of her statement before relying upon the
same, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman who
complains of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The court while appreciating
the evidence of a prosecutrix may look for some
assurance of her statement to satisfy its judicial
conscience, since she is a witness who is interested in the
outcome of the charge levelled by her, but there is no
requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence
of a victim of sexual assault stands almost on a par with
the evidence of an injured witness and to an extent is
even more reliable.........."
Said ratio has also been reiterated in Phool Singh vs.
State of Madhya Pradesh, (2022) 2 SCC 74.
[19] Here in this case, the evidence of the victim who is the sole
eyewitness on the occurrence is found credible and trustworthy.
Moreover, PW.6 has also corroborated her on material points. Therefore,
the absence of any motive for commission of crime as alleged, in such a
case is insignificant.
[20] Though learned counsel for the appellant strenuously argued
that there was no evidence that Dundu was appellant Ranjit Debroy but
it is noticed that the FIR itself was lodged with the name Ranjit Debroy
alias Dundu and in the charge sheet also, the investigating officer
mentioned his name as Ranjit Debroy alias Dundu. In examination under
Section 313 Cr.P.C. also, his name was mentioned in similar manner
and in the present memo of appeal also, the appellant himself has
mentioned his name as Ranjit Debroy alias Dundu and nowhere during
trial, the appellant had challenged that his nickname was not Dundu.
Therefore, such an argument is not at all convincing and does not
deserve any consideration.
[21] The mother of the victim Smt. Karanbati Reang [PW-4]
deposed that the police authority seized the birth certificate and the
Aadhar Card of her daughter which were later on released to her on bail
but during trial, the prosecution did not prove said birth certificate into
evidence which is a serious lapse. In a case under POCSO Act, it is
incumbent upon the prosecution to prove the age of the victim
satisfactorily. Nowhere in the evidence, the mother of the victim or the
victim has stated the date of birth of the victim. A bald statement by the
mother that the victim was aged about 15 years is not sufficient to
prove her age. Therefore, in absence of satisfactory proof of age of the
victim, the conviction under Section 8 of POCSO Act cannot sustain.
[22] The FIR was registered on 17/09/2019 as revealed from the
endorsement given by the Officer-in-Charge of the Police Station in the
FIR. The said Officer-in-Charge was examined as PW-2 who deposed
that he received the FIR on 17/09/2019 but the scribe of the FIR namely
Sri Shyamalendu Bhattacharjee [PW-1] stated in his evidence that he
had written down the Ejahar on 14/09/2019 as per request of the
informant and said date was also mentioned in the FIR itself after the
signature of the scribe in the FIR. The informant herself in her cross-
examination also confirmed that she had lodged the Ejahar on the date
of incident itself and, therefore, it is doubtful as to whether the
informant had actually caused any delay in lodging the Ejahar or the
police authority had belatedly registered it. When, the defence got it
confirmed from the mouth of both the informant and the victim that the
informant had lodged the FIR on the date of the incident, it is doubly
confirmed by defence themselves.
[23] The appellant except giving some denials during his
examination under Section 313 Cr.P.C. did not try to furnish any
explanation regarding the incriminating materials brought against him in
the evidence. Therefore, adverse inference is also required to be drawn
against him. In Rajkumar (supra) at para 22 it was held thus:-
"22. The accused has a duty to furnish an explanation
in his statement under Section 313 CrPC regarding any
incriminating material that has been produced against
him. If the accused has been given the freedom to remain
silent during the investigation as well as before the court,
then the accused may choose to maintain silence or even
remain in complete denial when his statement under
Section 313 CrPC is being recorded. However, in such an
event, the court would be entitled to draw an inference,
including such adverse inference against the accused as
may be permissible in accordance with law. (Vide
Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257,
Munish Mubar v. State of Haryana, (2012) 10 SCC 464 and
Raj Kumar Singh v. State of Rajasthan (2013) 5 SCC
722.)"
[24] In view of above discussion, it is held that the prosecution
has been able to prove successfully the charges under Section 448 and
Section 354 IPC which requires no interference. However, he is entitled
to be acquitted from the charge framed under Section 8 of POCSO Act.
[25] It was submitted by learned counsel Ms. Guha that the
appellant was a day labourer, aged about 40 years having
responsibilities to maintain his wife and two kids of 5 years and 7 years,
respectively and he is a first time offender.
[26] Under Section 354 of IPC, Ld. Trial Court imposed a
sentence of rigorous imprisonment for 5 years which is the maximum
punishment prescribed under Section 354 of IPC. But no reason has
been assigned by the Ld. Trial Court for inflicting such a highest form of
punishment as prescribed under the said provision. Considering the
above factors as indicated, the sentence passed under Section 354 of
IPC is, therefore, required to be modified.
[27] As a result, the appeal is partly allowed. The appellant is
acquitted from the charge framed under Section 8 of POCSO Act, but his
conviction under Sections 448 and 354 of IPC are maintained. The
appellant is now directed to suffer rigorous imprisonment for 2(two)
years and to pay a fine of Rs.1,000/- under Section 354 of IPC and in
default to pay the fine, he shall suffer further simple imprisonment for
10(ten) days. The sentence passed under Section 448 of IPC by Ld. Trial
Court shall remain unaltered. Both the sentences under Sections 448 of
IPC and 354 of IPC shall run concurrently. Needless to say, the period of
detention already suffered by the appellant during the course of
investigation and trial, if any, shall be set off.
Communicate the copy of this Judgment and Order to Ld.
Trial Court and also to the Superintendent of concerned
Sansodhanagar/Jail immediately for necessary steps to be taken by
them in this regard.
Return the LCRs.
Interim application(s), if any, stands disposed of.
JUDGE
SUJAY GHOSH GHOSH
Date: 2024.09.27 17:19:51
+05'30'
Riki
