B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
For Appellant(s) : Mr. S. Datta, Advocate.
Heard Mr. S. Datta, learned counsel appearing for the appellant also
heard Mr. R. Saha, learned Addl. P.P. appearing for the respondent-State.
[2] This is an application filed under Section-374 of the Code of
Criminal Procedure, 1973 against the judgment and order of conviction and
sentence dated 12.09.2024 and 13.09.2024 passed by the learned Special
Judge, Dhalai Judicial District, Kamalpur in connection with case
No.Special (POCSO) 02 of 2020, whereby and whereunder, the appellant
was sentenced to undergo rigorous imprisonment for a period of 5 years and
to pay a fine of Rs.1,000/- under Section-9 (m) of POCSO read with
Section-10 of POCSO Act, 2012 and he was further sentenced to undergo
RI for three months under Section-342 of the IPC. It was directed that both
the sentences shall run concurrently.
[3] The case of the prosecution, in a nutshell, is that on 30.12.2019
an FIR was lodged against the appellant and after investigation by the
investigating officer the charge sheet was submitted and charge was framed
against the appellant under Sections-342/376(1) of IPC and Section-6 of the
POCSO Act, 2012. After recording all the evidences by the learned Court
below and heard by both sides of the parties, the learned Court below
pronounced the judgment and sentence against the appellant.
[4] Thereafter, cognizance was taken under Sections-342/367-
A/506 of IPC and Section-6 of the POCSO Act, 2012 against the convict
appellant and the accused copies have been supplied to the accused in
compliance of Section-207 of Cr. P.C. Charges were framed against the
accused person for the offence punishable under Sections-342/376(1) of
IPC and Section-6 of the POCSO Act, 2012 explaining the contents of
charge to the accused person translating the same in Bengali to which he
denied the allegations and claimed to be tried.
[5] To substantiate the charge, the prosecution has adduced as
many as 20(thirteen) witnesses. On the closure of prosecution evidence, the
appellant was examined under Section-313(1)(b) of Cr. P.C. for having his
response in respect of the incriminating materials those surfaced in the
evidence as adduced by the prosecution, to which he strongly denied the
incriminating materials brought against him by the prosecution and claimed
to be tried.
[6] After hearing the arguments made by both sides and on perusal
of the material evidence on record, the learned Court below delivered the
judgment and order conviction and sentence. For the purpose of reference,
the operative portion of the impugned judgment and order of conviction
may be reproduced herein-below:
(d) The seized original birth certificate as per the seizure list dated
31.12.2020 shall be returned to the complainant. The other seized articles are
to be destroyed after the appeal period is over.
(e) Copy of this judgment is furnished to the convict free of cost. The convict
is also informed that he has right to appeal against the judgment of this Court.
(f) Send a copy of this judgment to the District Magistrate in compliance of
Section 365 of Cr.P.C.
(g) Award of compensation in terms of Section 9(2) of POCSO Rules, since
the child has suffered trauma, loss and injury and the case of the victim minor
child is hereby recommended to the District Legal Services Authority, Dhalai
Tripura, Ambassa. The copy of the said judgment be sent to the District
Legal Services Authority, Dhalai District, Ambassa."
[7] Being aggrieved by and dissatisfied with the judgment and
order of conviction, the present appeal has been preferred by the appellant.
[8] Mr. S. Datta, learned counsel appearing for the appellant has
submitted that the learned Court below has failed to appreciate the law,
facts and circumstances and as such the order of conviction and sentence is
liable to be set-aside. The examination of the appellant under Section-313
of Criminal Procedure Code was not done in accordance with law. The part
of evidences as relied upon by the learned Court below were neither
supported nor corroborated by the prosecution witnesses while giving their
deposition before the learned Court below.
[9] It has been further contended that in the Ejahar P.W.1 Smt.
Rita Rani Debbarma, who is also the informant of the case, while describing
the incidence of the fateful day has mentioned that, while she has gone to
the Salima Market at about 10:30 A.M. leaving her son namely, Sri.Sourav
Debbarma (08 years old) and her minor daughter namely, Rashni Debbarma
(04 years old), in her lonely house. However, in the Cross Examination
during her deposition before the learned Court below has categorically
stated that, on the date of the incident she has kept her children in the
custody of her Nanad (Sister-in-Law) Smt. Junu Debbarma (P.W-5), whose
house a situated next to 3/4 houses of the present accused person.
[10] Furthermore, in her Ejahar, the informant has stated that, when
after completion of her work at about 01:30 p.m. she has returned home, she
could not find her children in her house and while searching for them she
could hear the voice of her minor daughter i.e., the victim of this case inside
the dwelling hut of her neighbour i.e. the appellant herein. It is surprising
that, since in her Cross examination she has clearly stated that she has left
her children in the custody of her nanad and after returning from the market
she could not find them there and therefore she has called the local people
and knocked the door of the appellant. These above two statements are
contradictory and therefore are not believable.
[11] In the Ejahar the informant has said that, the door of the hut of
the appellant has been locked from inside but in the next line she said that
she has pushed the and has found the appellant committing rape upon the
victim in a naked condition but in cross examination she accepted that the
victim has not stated to her that she was being sexually assaulted by the
appellant. It is also quite contradictory that, the informant has said that she
heard the voices of her minor daughter and went to the house of the
informant but in her deposition before the court she said that, she learnt
from her son Sourav Debbarma that victim was in the house of the
appellant.
[12] Moreover, during her Cross Examination the informant has
admitted that, there was a pending land dispute between her and the present
appellant and they did not visit each other's house for more than 5 years
prior to the alleged the incident, which itself negates her story. All these
vital factors were not being considered by the learned Court below.
[13] P.W.3 i.e., the victim of this case has stated in her deposition
before the court that, the appellant has taken her to his house and has
sexually assaulted her but in the cross examination she gave an altogether
different story and has candidly stated that, the informant i.e., her mother
has kept her in the custody in the house of her pishi (P.W-5) while going to
the market and after returning, her mother has again taken her and her
brother from the custody of her pishi. She also stated that, she was not used
to go to the house of the appellant but these extremely important fact has
totally been overlooked by the learned Court below and as such the
impugned Judgment & order needs to be set aside and set aside.
[14] P.W. 5 (Nanad of the informant, P.W-1 and pishi of the victim
i.e., P.W-3) is a vital witness to this case. She in her deposition has stated
that, the mother of the victim i.e., the informant (P.W-1) has kept both her
son and daughter (the victim) in her custody while going to the market and
after that she has went to the jungle and later she has learnt from the victim
that, she was being sexually assaulted by the appellant and after that, she
has taken the victim to the hospital. However, while facing the cross
examination, it was found that, the fact that, she has learnt the incident from
the victim is an improvement, which she has not stated to the I.O. and
moreover, another fact that, she has accompanied the victim to the hospital
was not supported either by the informant mother (P.W-1) or the victim
(P.W-3). These are glaring contradictions, which are being overlooked by
the learned Court below.
[15] From bare perusal of the statements made by the witnesses i.e.
P.W. 8 & P.W. 16, it can be safely inferred that, there was no sign of sexual
assault upon the victim either from the report of the S.F.S.L and the report
produced by the Medical Officer and these are most vital factors to be
considered for the proper adjudication of the case but these extremely
important aspects are being completely overlooked by the learned Court
below and as such the impugned Judgment & order needs to be set aside.
[16] P.W. 13 is another vital witness to the case and he was serving
as the Panchayat Secretary at Salema Gram Panchayatand he has issued the
birth certificate of the victim but it is extremely surprising that, while
issuing such birth certificate, he has relied upon Adhar Card, Ration Card
and voter ID Card of the parents of the victim and also based upon
certificate issued from the concerned Chairman, which is totally illegal and
unacceptable in the eyes of law. Furthermore, in the cross-examination he
has fairly admitted that, the parents of the victim did not submit any
document except the certificate from the Chairman. He has also admitted
that, as per Birth and Death Registration Act, 1969. He also said that, the
said birth certificate does not bear any verification number as to the actual
date of birth.
[17] Thus, it is quite clear that, P.W. 13 was not at all competent
authority to issue the aforesaid Birth Certificate of the victim and also such
Birth Certificate was also not issued relying on the required documents
necessary for such issuance. Thus, there is no proof of the age of the victim
at the relevant time of the incident, which is the most key ingredient for a
case under POCSO Act but most unfortunately, this extremely vital fact was
not at all being considered by the learned Trial Court below.
[18] On the basis of the evidence, learned Addl. P.P. canvassed his
arguments, that the complainant, victim and all the witnesses have deposed
in favour of the prosecution supporting the evidence collected by the IO. He
also addressed that the documents marked as exhibits discloses the offence
on a child who is less than 12 years of age.
[19] Before we proceed to deal with the merits of the case and
decide the points taken up, it would be apposite to have a deep look at the
material evidence of certain relevant prosecution witnesses for better
appreciation of the rival contentions and to decide the dispute involved in
the case.
[20] Learned counsel appearing for the appellant argued that there
was no established evidence against the accused that he has committed the
offence. It is argued by the learned counsel that the son and daughter of the
complainant were in the custody of PW-5 and a false case has been
furnished against the accused and hence, the accused is to be acquitted. The
statements which were not made to the IO, evidence cannot be relied upon.
The complainant did not give such line of statement to IO. It cannot be
ascribed to the fact that victim was not present in the house of the accused.
PW-5 in her statement has stated that the victim and the son of the
complainant were kept her house. It has been further confirmed that when
the incident took place, the complainant kept her son and the daughter in the
house of PW-5. There are some contradictions on the part of the evidence of
mother of the victim girl with other witnesses.
[21] The way the prosecution has projected the case and being found
serious contradictions and inconsistencies in the statements in course of trial, it
would be very difficult for this Court to believe the projected case of the
prosecution. It is settled proposition of law that the charge framed against the
accused person has to be established and proved beyond any shadow of doubt.
Suspicions, however, grave in nature, should not amount to prove. The
discrepancies which are found in this case as analyzed above, appeared to be
abnormal in nature which is not expected from a normal person. After cautious
scrutiny of the evidence and considering the entire chain of circumstances, this
Court finds it difficult to arrive at a finding to draw the hypothesis of guilt against
the accused-appellant.
[22] In the backdrop of above analysis, I am of the view that the
prosecution has failed to establish their projected case and consequently the
instant appeal is allowed. Accordingly, the order of conviction and sentence dated
12.09.2024 & 13.09.2024 passed by the learned Special Judge, (POCSO) Dhalai
Judicial District, Kamalpur, in Special (POCSO) 02 of 2020 is set aside. The
appellant shall be released forthwith, if not wanted in connection with any other
case.
[23] With the above observations and direction, the instant appeal stands
allowed and disposed of. As a sequel, miscellaneous applications pending, if any,
shall stand closed. Send down the LCRs.
T. AMARNATH GOUD, J
A.Ghosh
ANJAN GHOSH Digitally signed by ANJAN GHOSH
Date: 2025.04.28 15:21:54 +05'30'
