Tripura High Court
Md. Mahammad Ali vs The State Of Tripura on 23 April, 2025
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
HIGH COURT OF TRIPURA
AGARTALA
Crl.A.(J) 65 of 2023
Md. Mahammad Ali
S/o- Md. Samed Ali
R/o- Chantain, PS: Kailashahar, Dist: Unakoti Tripura.
---Appellant(s)
Versus
The State of Tripura
Represented by its Secretary-Cum-Commissioner, Department of Home, Government of
Tripura, PO: Kunjaban, PS: New Capital Complex, Dist: West Tripura
---Respondent(s)
For Appellant(s) : Mr. D. Sarkar, Advocate.
For Respondent(s) : Mr. Raju Datta, PP
Mr. Rajib Saha, Addl. PP
Date of hearing and date of
delivery of judgment : 23.04.2025.
Whether fit for reporting : No
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
(T. Amarnath Goud, J)
Heard learned counsel for the parties.
[2] This is an appeal under Section 374 of the Code of Criminal
Procedure challenging the legality and validity of judgment and order of
conviction & sentences dated 06.10.2023 passed by Ld. Special Judge (POCSO),
Unakoti Judicial District, Kailashahar in a case no.Special (POCSO) 10 of 2021
whereby the Ld. Trial Court sentenced the convict for commission of offence
punishable under Section 6 of POCSO and hereby sentenced him to suffer
rigorous imprisonment for term of 20 years and to pay a fine of Rs.25,000/- only
i.d, to payment of fine he shall further suffer simple imprisonment for a term of
03(three) months.
[3] In nutshell, the prosecution story that led to the setting of the
criminal law in motion is that on 14.03.2021, at about 10/11 hours, when the
informant returned to this dwelling house from Srirampur Ration Shop, then he
came to know from his wife and his victim-daughter that when his victim-
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daughter who is mentally disabled, went to the dwelling house of the accused
person namely Md. Mahammed Ali for returning the empty bowl of the said
accused then at that time, the accused person who was alone at home, taking
advantage of the this opportunity, pulled the victim to the bed and thereafter
forcefully committed rape upon her by threatening her. In fact, at that point of
time, the son of the informant (i.e. the brother of the victim) namely Salim Ali
appeared at the spot and witnesses the incident. The informant being aggrieved by
the aforesaid incident lodged a case against the said accused person.
[4] Based, on the written complaint of the informant, a case was lodged
at Kailashahar Women PS on 14-03-2021 and the same was registered as
Kailashahar Women PS, Case No. 2021/WKS/015. Thereafter, the case was
endorsed to the IO for investigation. Accordingly, IO took up the charge of
investigation. During investigation, on 14.03.2021, she had examined the
informant and the victim connected with this case. During the course of
investigation, on 14.03.2021, she had seized one original birth certificate and
original mental disability certificate of the victim by preparing a seizure list.
[5] On the same day, the said IO had made arrangement for medical
examination of victim (name withheld) at RGM Hospital. Proceeding further,
during the process of the investigation, she had also seized the wearing apparels
of the victim by preparing yet another seizure list dated 15.03.2021. Again, on the
same day, she had examined two available witnesses and recorded their statement
under section 161 of Cr.P.C and further, on 15.03.2021 the IO had visited the PO
situated at Chantail under Kaialashahar PS and prepared hand sketch map along
with separate index. Again on 17.03.2021, she had produced the victim before the
Magistrate whereupon, her statement was recorded under section 164 (5-A) (a) of
the Cr. P.C and on 19.03.2021, she had collected the medical report of the victim
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from RGM Hospital. During investigation, on the same day, the IO had arrested
another co-accused person namely Rakib Ali and forwarded him before the court
on the following day. Further, on 25.03.2021 she had arrested another co-accused
persons connected with this case namely Asraf Ali and Safik Ali and forwarded
them before the court on the next date.
[6] Moving forward, again on 27.03.2021, the IO had arrested yet
another accused persons namely Billal and Chamed Ali and forwarded them
before the court on the very next day. Also, on 30.03.2021, she had arrested the
principal accused person namely Mohammad Ali and forwarded him before the
court. Further, on the same date, she had made arrangement for medical
examination of the accused person Mohammad Ali in order to determine his
potency test and also seized the blood sample of the accused. On the same day,
the said IO had seized the DVD containing the judicial statement of the victim
recorded aforesaid by preparing a seizure list.
[7] On 12.04.2021, she had also sent the witness namely Salim Ali, the
brother of victim before the Magistrate, whereupon, his statement was recorded
under section 164 (5-A) (a) of the Cr.P.C. During the course of investigation, on
the same date, the IO had also collected the SFSL report of the victim as well as
the accused from SFSL, Narsingarh and thereafter, collected the medical reports
reflecting final opinion of the victim and accused. Further on, 19.04.2021 the IO
had seized one original primary school certificate of the victim by preparing yet
another seizure list dated 19.04.2021.
[8] On completion of the investigation, a charge-sheet was submitted
by the IO, after finding prima facie materials against the accused person namely
Md. Mahammad Ali under sections 376(2)(j)(1)/506 of the IPC and under Section
6 of the POCSO Act and against the other co-accused persons namely Md. Rakib
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Ali, Md. Ashraf Ali, Md. Safik Ali, Md. Billal Miah and Md. Chhamed Ali under
sections 120(B)/212 of the IPC and accordingly, submitted the charge-sheet vide
WKS PS C/S No.14/2021, dated 19.04.2021.
[9] Upon receipt of the aforesaid charge-sheet, cognizance of the
offence punishable under sections 376(2)(j)(1)/506 of the IPC and under Section
6 of the POCSO Act was taken by this court against the accused person namely
Md. Mahammad Ali and further, under sections 120(B)/212 of the IPC against the
other co-accused persons namely Md. Rakib Ali, Md. Ashraf Ali, Md. Safik Ali,
Md. Billal Miah and Md. Chhamed Ali. Thereafter, the accused copies of the
incriminating documents were supplied to the accused persons, named above,
through their engaged Ld. Counsels in compliance with the provisions engrafted
under section 207 of the Cr.PC.
[10] During trial, upon hearing submissions of parties on the point of
framing of charge and taking into consideration, the record and documents placed
thereon, my predecessor-in-office framed the charges against the accused person
namely Md. Mahammad Ali under sections 376/506 of the IPC and under Section
6 of the POCSO Act and against the other co-accused persons namely Md. Rakib
Ali, Md. Ashraf Ali, Md. Safik Ali, Md. Billal Miah and Md. Chhamed Ali under
sections 120(B)/212 of the IPC. Thereafter, the contents of the charges were read
over and explained to the accused persons to which they pleaded not guilty and
claimed trial.
[11] Thereafter, the learned court below by the order dated 06.10.2023
passed the impugned order which is reproduced herein under:
Order
16. In the result, the convict namely, Md. Mahammed Ali stands
sentenced under Section 6 of the POCSO Act, to suffer rigorous
imprisonment for a term of 20(twenty) years and to pay fine of Rupees
25,000/- (Twenty Five Thousand) only. In default of the payment of fine,
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the said convict shall suffer simple imprisonment for a further term of
3(three) months.
17. The amount of fine, if realized, shall be handed over to the victim as
compensation.
[12] Aggrieved by the above sentence passed by the learned Court
below, the appellant side has preferred this present appeal.
[13] It is contended by the counsel for the appellant that PW -1 (name
withheld) in her cross examination stated that on earlier occasion another rape
case was lodged by the father of the PW No. 1 against Najrul Hossain for
committing rape upon the PW No. 1 that case was registered as ST/33(NTK)/
2014 under section 376(2)(i) of IPC and section 4 of POCSO Act. The accused
person Najrul Hossain subsequently acquitted from the said case. It is also
suggested by the defense that during the alleged offense the victim crossed 18
years of age. It is also reveals from the cross examination it is also found that that
there is old pending boundary/path way disputes and in that regard so many cases
including civil case is also pending between the father of the victim and the father
of the accused person before the Ld. Civil Court, Kailashahar. Some of the cases
decided by the Revenue Authority.
[14] He further stated that it is seen from the deposition of PW No. 2 that
that there are major omission, exaggeration and contradiction between the
statement recorded by the IO under section 161 of Cr.P.C and the statement
before the Ld. Trial Court. He also admitted that there are civil case pending
before the Ld. Civil Judge (Junior Division) Kailashahar between the father of the
accused and the PW No. 2. He further admits that earlier also a Criminal case was
lodged against Najrul Hossain vide No. ST/33(NTK)/ 2014 under section
376(2)(i) of IPC and section 4 of POCSO Act said case was disposed off on
22/11/2014 an acquitted the accused Najrul Hossain from that case.
Page 6 of 11
[15] He further draws the attention of this court to the deposition of the
PW No. 4 Mst. Afiya Begam who is the mother of victim. From the cross
examination of Pw No. 4 it is found that on the alleged date of incident her
daughter Shilpi (Victim) did not go to school but her son namely Selim Ali went
to his school. She also deposed that she stated to Darogababu "that my daughter
and Selim inform me that Selim found my daughter and Mahammed Ali in naked
condition lying over my daughter. Attention of the witness is drawn to her
statement recorded under section 161 of Cr.P.C by the defence but no such
statement found therein". From the statement of the Pw No. 4 she stated that her
son and daughter at the first instance informed her about the alleged incident is
totally doubtful. She also stated that there are other houses beside the house of the
accused as well as victim. But no independent person was cited as witness in the
instant case by the investigating agency for unknown reasons.
[16] To support his case, learned counsel for the appellant has placed his
reliance on a judgment of the apex court in Manoj and Others vs. State of Madhya
Pradesh reported in (2023) 2 SCC 353 where the apex court has observed as
follows:
151......
.....
......
Collection and Preservation of Evidence
If DNA evidence is not properly documented, collected, packaged, and
preserved, it will not meet the legal and scientific requirements for
admissibility in a court of law. Because extremely small samples of
DNA can be used as evidence, greater attention to contamination issues
is necessary while locating, collecting, and preserving. DNA evidence
can be contaminated when DNA from another source gets mixed with
DNA relevant to the case. This can happen when someone sneezes or
coughs over the evidence or touches his/her mouth, nose, or other part
of the face and then touches area that may contain the DNA to be tested.
The exhibits having biological specimen, which can establish link
among victim(s), suspect(s), scene of crime for solving the case should
be identified. preserved, packed and sent for DNA profiling."
152. In an earlier judgment, R v. Dohoney & Adams40 the UK Court of
Appeal laid down the following guidelines concerning the procedure b
for introducing DNA evidence in trials: (1) the scientist should adduce
the evidence of the DNA comparisons together with his calculations of
the random occurrence ratio; (2) whenever such evidence is to be
adduced, the Crown (prosecution) should serve upon the defence details
as to how the calculations have been carried out, which are sufficient
for the defence to scrutinise the basis of the calculations; (3) the
Forensic Science Service should make available to c a defence expert, if
requested, the databases upon which the calculations have been based.
153. The Law Commission of India in its Report41, observed as follows:
"DNA evidence involves comparison between genetic material thought
to come from the person whose identity is in issue and a sample of
genetic material from a known person. If the samples do not "match",
then this will prove a lack of identity between the known person and the
person from whom the unknown sample originated. If the samples
match, that does not mean the identity is conclusively proved. Rather,
an expert will be able to derive from a database of DNA samples, an
approximate number reflecting how often a similar DNA "profile" or
"fingerprint" is found. It may be, for example, that the relevant profile is
found in 1 person in every 1,00,000: This is described as the "random
occurrence ratio" (Phipson 1999, 15th Edn., Para 14.32).
Thus, DNA may be more useful for purposes of investigation but not for
raising any presumption of identity in a court of law."
(emphasis in original)
[17] Reliance has also been placed on the other judgments of the apex
court in State of AP vs P. Narasimha And Another reported in (1994) 4 SCC 453
and in Alamelu & Anr vs. State represented by Inspector of Police judgment
passed in Criminal Appeal No.1053 of 2009. Reliance has also been placed on the
judgments passed by this High Court in Matilal Sarkar vs. The State of Tripura
(judgment passed in Crl.A.(J) 42 of 2023) and in The Special Judge (POCSO)
Khowai District, Tripura vs The State of Tripura and another (judgment passed
in Death Sentence Reference 01 of 2022).
[18] It is further contended by the counsel for the appellant that the
present case in hand be dealt with as per Section 4 (1) of the POCSO Act, 2020
which reads as under.
4. Punishment for penetrative sexual assault (1)- whoever commits
penetrative sexual assault shall be punished with imprisonment of either
description for a term which shall not be less than ten years but which
may extend to imprisonment for life, and shall also be liable to fine.
[19] On the other hand, Mr. R. Saha, learned Addl. PP appearing for the
state-respondent has contended before this court that the impugned order is just
and proper and needs no interference from this court. In course of his submission,
he has also referred to the deposition of PW-13-Dr. Papiya Rudrapaul, wherein
the PW-13 has stated as under:
"....On examination of the victim I found that there was no sign of any
forceful vaginal and anal penetration. There was no sign of any injuries
nearby genetalia, inner thigh, mons pubic and other part of body.
Hymen of the victim was found and that was fresh. Thereafter, on
observation of private part it was seen Clitorial hypertrophy and for
which she was referred to concerned a gynecologist. Thereafter, on
received report from SFSL I gave my final opinion on 12.04.2021 to the
fact that there were no physical injuries but genetal injury hymen was
raptured was present......."
[20] Moreover, Mr. Saha, learned Addl. PP has further prayed before
this court to dismiss the appeal by confirming the impugned order of the learned
court below.
[21] Heard and perused the record.
[22] To adjudicate the case in hand, let us examine some important
witnesses and evidence.
[23] PW-1 is the victim girl. She deposed that around one year and two
months ago at about 10 am, she went to the house of Mohammad Ali for
returning one bowl. At that time Mohammad Ali forcefully embraced her and he
suddenly pulled her on the bed and opened her brinjal coloured Salwar. He also
gagged her mouth and laid her on the bed and had sexual intercourse with her
against her will. He is her neighbour. At that time her younger brother namely,
Salim Ali arrived there and Mohammad ran away therefrom. After that she
returned to her house and informed her parents. Thereafter, her father lodged the
instant case. Subsequently, police came and took her to hospital for medical
check up and thereafter she was also taken to Court. She stated Magistrate about
the incident who recorded her statement. She also put her signature in the
statement.
In her cross-examination, she stated that she studied upto Class-IX
in Chantail H.S. School, She is still pursuing her studies.
[24] PW-5 Md. Salim Ali who is the brother of the victim girl deposed
that on 14.03.2021 at about 10 am, his mother told him to go to the house of
Mohammad Ali since his sister Shilpi Begam was not returning from their house
who went there for returning one bowl. Accordingly, he went to the house of
Mohammad Ali which situates nearby our house. On going there, he found his
sister and Mohammad Ali in a naked condition and his sister's mouth gagged and
lying on bed. On seeing him, Mohammad left his sister and went away therefrom.
Then he and his sister returned to house and informed his mother about the
incident. After that he went to my school. Subsequently, police took him to Court
where he stated the whole incident to one Madam. He put his signature in the
statement written by one Madam.
In cross-examination nothing is found relevant except suggestions
and denial made on behalf of the accused.
[25] PW13 (MO) Dr, Papiya Rudrapaul who examined the victim has
categorically and specifically stated in her preliminary report that "the hymen of
the victim was found torn and was fresh." Subsequently, after receiving the FSL
report, the said MO (PW13) finally opined in her report (Exhibit-P12 series),
consisting of five sheets that "there were no physical injuries but genital
injury(hymen was ruptured) was present. Swab analysis report was positive for
seminal fluid/spermatozoa and there were signs of suggestive sexual intercourse."
Thus, in light of the above, the prosecution contended that there is no any
variance between the versions of the vital witnesses manifested above and the
version expressed by the Medical Officer (PW13) regarding the fact that the
accused person namely Md. Mahammed Ali committed rape or alternatively,
aggravated penetrative sexual assault upon the minor victim girl.
[26] PW18 (SFSL expert, Biology/Serology Division) has categorically
and specifically opined in his report(Exhibit 22) that "Spermatozoa of human
origin were deducted in the Exhibits- F1, F2, G1, G2, H1, H2 and K." It should
be noted here that the aforesaid Exhibit-F1 and F2 indicates urethral swab and
smear of the victim, Exhibit-G1 and G2 indicates inner vaginal swab and smear
of the victim, Exhibit-H1 and H2 further indicates outer vaginal swab and smear
of the victim and Exhibit-K indicates deep purple colour Salwar of the victim."
Therefore, it is very much evident that the accused Md. Mahammed Ali has
committed rape or alternatively, aggravated penetrative sexual assault upon the
minor victim girl and thus, it again reinforces and establishes the story of the
prosecution substantially, without any iota of doubt.
[27] Having considered the evidence on record, this Court finds that the
deposition of the victim girl is consistent, credible, and trustworthy. Her
testimony is duly corroborated by the statement of her brother, an eyewitness to
the incident, and the medical report, which clearly establishes that the appellant
was physically capable of committing the act alleged. This court also finds force
in the submission as advanced by the learned Addl. PP for the state-respondent.
This court also opines that the judgment as relied on by the counsel for the
appellant is not relevant to the present context of the case. Hence, the appellant
has failed to establish his case.
[28] The trial court has rightly appreciated the evidence and convicted
the appellant under Section 6 of the Protection of Children from Sexual Offences
Act. No illegality, perversity, or error in law is found in the impugned judgment
warranting interference by this Court.
[29] Accordingly, the appeal is dismissed. The judgment and order of
conviction & sentences dated 06.10.2023 passed by Ld. Special Judge (POCSO),
Unakoti Judicial District, Kailashahar in a case no.Special (POCSO) 10 of 2021
stands affirmed. The appellant shall continue to undergo the sentence as directed.
As a sequel, stay if any stands vacated. Pending application(s), if any also stands
closed. Send down the LCRs forthwith.
B.Palit, J T. Amarnath Goud, J
Dipak
DIPAK Digitally signed by
DIPAK DAS
DAS Date: 2025.04.28
16:49:57 +05'30'
