Tripura High Court
Sri Dharanjoy Reang vs The State Of Tripura on 25 July, 2025
HIGH COURT OF TRIPURA
AGARTALA
Crl.A.No.12 of 2024
1. Sri Dharanjoy Reang,
S/O Sri Alanga Reang
Of Shikaripara,
P.S.- Gonda Twisa,
Dist.- Dhalai Tripura.
2. Sri Ramoni Reang,
S/O Sri Ajoy Ram Reang
Of Shikaripara,
P.S.- Gonda Twisa,
Dist.- Dhalai Tripura.
.... Appellants.
Versus
The State of Tripura
.......Respondent.
For Appellant(s) : Mr. Subrata Sarkar, Sr. Adv.
Ms. Ayesha Saha Hirawat, Adv.
Ms. Megha Sarkar, Adv.
For Respondent(s) : Mr. Rajib Saha, Addl. P.P.
Date of Hearing : 18.07.2025
Date of delivery of
Judgment and Order : 25.07.2025
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment
and order of conviction and sentence dated 05.03.2024
delivered by Learned Special Judge (POCSO), Ambassa, Dhalai
in connection with Case No.Spl. (POCSO) 03 of 2023. By the
said judgment and order of conviction and sentence, Learned
Trial Court found the present appellant guilty for the
commission of offence punishable under Section
354(A)/376/511/34 of IPC and Section 8 of POCSO Act and
accordingly sentenced both the convicts to suffer R.I. for 1
year each and to pay a fine of Rs.5000/- each i.d. to suffer
further R.I. for 3 months each for commission of offence
punishable under Section 363 of I.P.C. and also sentenced
each of the appellants to pay a fine of Rs.50,000/- each i.d. to
suffer further R.I. for 6 months for commission of offence
punishable under Section 354A of IPC and each of the
appellants is further sentenced to suffer R.I. for 1 year and fine
of Rs.50,000/- each i.d. to suffer further R.I. for 6 months for
commission of offence punishable under Section 511 of IPC and
further sentenced to suffer R.I. for 3 years each with a fine of
Rs.50,000/- each i.d. to suffer further R.I. for 6 months each
for commission of offence punishable under Section 8 of
POCSO Act, 2012. It was further ordered that if the fine money
is realized the same will be paid equally to the victims.
2. Heard Learned Counsel, Smt. Ayesha Saha Hirawat
who argued the case being instructed by Learned Senior
Counsel, Mr. Subrata Sarkar appearing on behalf of the
appellants and also heard Learned Addl. P.P., Mr. Rajib Saha
appearing on behalf of the State-respondent.
3. At the time of hearing, Learned Counsel, Ms. Ayesha
Saha Hirawat first of all drawn the attention of the Court to the
fact that in this case, the prosecution has failed to prove the
charge levelled against the convicts. Learned Counsel further
drawn the attention of the Court to the fact that in the FIR
there was no explanation regarding the delay, and before the
Learned Trial Court, the prosecution failed to explain the
reason for the delay in lodging the FIR. According to the
prosecution, the alleged accident took place on 23.12.2022,
but the FIR was lodged at the Police Station on 24.12.2022.
There was no explanation in this regard from the side of the
prosecution.
4. Learned counsel for the appellants further submitted
referring the contents of the hand sketch map of the place of
occurrence (PO), and drawn the attention of the Court that if
the hand sketch map of the PO is examined and scrutinized, it
will be found that there are nearby houses, but none of the
neighboring persons to the alleged PO were cited as witnesses
in this case, which casts a doubt about the prosecution story. It
was further submitted that some of the prosecution witnesses,
during their deposition before the Court, stated that the
offending vehicle was removed from the PO at the time when
the victims were recovered. However, referring the final report
of the Investigating Officer (I/O), Learned Counsel tried to
draw the attention of the Court that the same vehicle was
recovered in the area of Panchajoy Para on Panchajoy Para
road, which are contradictory to each other, and there was no
explanation in this regard from the side of the I/O.
5. Learned Counsel for the appellants also stated that
in this case, the prosecution could not produce any medical
report of the alleged victim before the Court to support the
prosecution case. Furthermore, all the witnesses of the
prosecution are near relatives, and from the contents of the
FIR, it appears that on the basis of Google Map location, the
exact location of the victim was traced by the relatives on that
relevant day which was not corroborated by the victims of this
case. Even though the victims possessed mobile phones, they
did not report anything to the informant or his family
members, which also creates serious doubts about the
prosecution story. Learned Counsel also drawn the attention of
the Court that, in order to substantiate the charge under the
POCSO Act, the prosecution could not produce any school
certificate, birth certificate, etc., to prove the age of the
victims. Only the informant in the FIR stated the age of the
victims as 15 and 16 years, which also creates doubt about the
prosecution story, especially when none of the prosecution
witnesses deposed before the Court regarding the exact age of
the victims. As such, the prosecution has totally failed to prove
the charge under the POCSO Act.
6. Learned Counsel for the appellants also drawn the
attention of the Court to the cross-examination of the I/O, who
specifically stated that during the course of investigation, he
did not collect any age proof certificate of the victims. This
shows that there was no scope on the part of the Learned Trial
Court to convict the appellants under Section 8 of the POCSO
Act. It was further submitted that from the evidence of the
prosecution, it appears that a lady was present inside the
vehicle, but strangely the prosecution neither produced that
lady as a witness nor was there any effort from the side of the
I/O to trace out that lady in support of the prosecution case. It
was also submitted that PW-19, the I/O, stated that all the
witnesses are hearsay witnesses, so no reliance could be
placed upon their evidence. Furthermore, regarding removal of
the vehicle, the witnesses gave different versions.
7. Learned Counsel for the appellants again submitted
that even if the evidence of the victims are carefully examined,
the same is contradictory to each other, and even their
evidence contradicts their judicial statements made before the
Court. Situated thus, Learned Counsel, Ms. Ayesha Saha
Hirawat urged before the Court that the evidence of the
prosecution suffers from various infirmities, and there is no
scope to presume the appellants to be involved for the alleged
occurrence. As such, she prayed for acquittal of the appellants
from the charge of this case by allowing the appeal.
8. On the other hand, Learned Addl. P.P., Mr. Rajib
Saha appearing on behalf of the prosecution, submitted that in
this case, the prosecution has adduced 19 witnesses, and the
evidence of PWs 1, 2, 3, 4, 5, 6, and 19 is very much relevant
for decision of this case. He also drew the attention of the
Court to the cross-examination of the said witnesses and
submitted that the appellants, during cross-examination of
those witnesses, could not in any manner discredit or
dismantle the evidence on record regarding the innocence of
the accused persons. Furthermore, during cross-examination of
the said witnesses, there was no single suggestion regarding
the location of the vehicle or its recovery. Moreover, from the
cross-examination of the said witnesses, it is crystal clear that
there was no defence from the side of the appellants to
disbelieve the age of the victims as minors.
9. Learned Addl. P.P. also submitted that during
examination of the appellants under Section 313 of Cr.P.C.,
except for a bare denial, no other explanation was offered by
the accused persons regarding their innocence in relation to
the alleged crime. It was further submitted that except for PWs
1, 2, 3, 4, 5, 6, and 19, the other witnesses are hearsay
witnesses and deposed before the Court after hearing the facts
from the informant or the victims. So there is no scope to
disbelieve their evidence either, and even during cross-
examination, the appellants could not discredit their testimony
on record.
10. Situated thus, according to the Learned Addl. P.P.,
there is no scope to disbelieve the prosecution case, and the
prosecution has reasonably and rightly proved the charges
against the accused persons before the Learned Trial Court.
Therefore, he urged for dismissal of the appeal by upholding
the judgment and order of conviction and sentence.
11. In this case prosecution has set into motion on the
basis of an FIR laid by one Pradip Reang on 24.12.2022 to the
Officer-in-Charge of Ganganagar Police Station alleging inter
alia that on 23.12.2022 at around 6:00 PM, his daughter and
his brother's daughter [name not withheld], aged about 15
years, went to the residence of one Bishnuram Reang to attend
a ceremony in connection with the engagement of his sister's
daughter, as on that day the engagement was scheduled to be
finalized. Approaching near Ashu Academy School, they were
allegedly forced into a vehicle by some persons of one Kwid
white coloured vehicle bearing registration number TR-04C-
0544. When the said victims did not return to Bishnuram
Reang's residence, all their relatives searched for them but
could not trace them out. Upon establishing contact with the
victim, it was revealed that a second individual had arrived on
a motor bike and, after joining the accused persons, attempted
to forcibly outrage their modesty and commit sexual assault.
The relatives of the victims traced the mobile phone location
and proceeded towards Killa Para besides the road near Ganga
Bari CRPF camp and when they reached there around 9:00 PM,
the accused persons who were present, fled away from the
scene. Based on the narration from his daughter, the informant
laid the FIR.
12. On the basis of this FIR, Ganganagar P.S. Case No.
04 of 2022 under Sections 363/354A/511 of IPC read with
Section 8 of the POCSO Act was registered. The Investigating
Officer, after conclusion of investigation, submitted charge-
sheet against the present appellant along with one Rakesh
Tripura. As Rahul Gandi Tripura @ Rakesh was declared as a
children in conflict with law, by order dated 04.04.2023 passed
by the Learned Special Judge (POCSO), Dhalai Judicial District,
Ambassa, his case was referred to the Juvenile Justice Board,
Kamalpur, Dhalai and the present appellant faced trial.
13. Before the Learned Special Judge, charges were
framed against the present appellants under Sections
363/354A/511 of IPC and Section 8 of the POCSO Act, 2012
the appellants pleaded not guilty, and claimed to be tried. To
substantiate the charges, the prosecution, as already stated,
has adduced in total 19 numbers of witnesses. The appellant
was examined under Section 313 of Cr.P.C., to which they
pleaded not guilty. Finally, on conclusion of trial, the Learned
Special Judge found the appellants to be guilty, convicted them
accordingly, and the present appeal has been filed challenging
the said judgment and order.
14. I have heard arguments of both the sides and gone
through the findings of the Learned Trial Court. To substantiate
the charge, the prosecution in this case has adduced 19
numbers of witnesses.
PW1 is the informant of this case, who is also father
of one of the victim. In course of his examination-in-chief, he
reiterated the contents of the FIR. During cross-examination,
he stated that the victims had their own personal mobiles, but
no contradictions could be elucidated by the defence to
discredit his evidence.
Similarly, PW2 is the father of another victim who
confirmed the version of PW1 and stated that the present
appellants abducted his daughter and another girl with bad
motive and tried to commit sexual assault upon them.
Similarly, PW3, one of the victims, stated in her
examination-in-chief that a few months ago, she along with her
younger sister was going to the residence of Binya Rung Reang
to attend the marriage function of her daughter and when they
reached near Ashu Academy School, they noticed a white
colour car was waiting besides the road and there was a person
besides the driver of the vehicle and another was on a motor
bike. The appellants forcibly made them board the vehicle.
They were taken to Gandacherra and again returned back to
Killa Para. Thereafter again both the victims were taken to
Gandacherra and on the way to Gandacherra the accused
persons touched their body and private parts forcibly against
their will with an intention to do sexual act but failed. She
further stated that the accused persons fled away from the
spot when her father and others arrived. She identified the
accused persons during her deposition.
During cross-examination, she stated that there was
a lady present inside the vehicle at that time. She also
admitted the fact that she and her sister had possession of
mobile phones but did not make any calls at the relevant point
of time.
PW4, Saishirung Reang is the wife of the informant
(PW1). She corroborated the version of her husband in her
examination-in-chief, but during cross-examination, except for
affirming her faith in the testimony of the informant but
nothing came out relevant.
PW5, another victim and daughter of Bishnu Ram
Reang, stated that on 23rd day of December she herself along
with another victim were going to attend that engagement
ceremony of the daughter of her aunt and they reached near
Ashu Academy School they could noticed that the accused
persons were waiting there with a white colour van and when
they went nearby the vehicle the accused persons called them
and offered themselves to give a lift so that they may go to
Ganganagar as early as possible. Accordingly they boarded the
vehicle on good faith but while they reached near destination
at Ganganagar they did not stop the vehicle and subsequently
a lady boarded in the said vehicle and they have taken towards
Gandhacherra. On the way to Gandacherra somewhere they
have been offered to eat some food but they did not accept.
Again they have been taken towards Killa Bari Para and in the
meantime, another person joined with them riding on a motor
bike. The accused persons forcibly touched their body, thigh
and private parts one after another in presence of the said lady
inside the vehicle and subsequently the accused persons came
to learn that some persons were appearing there and
apprehending some danger, they fled away leaving them in the
vehicle with the said motor bike. She was produced before the
Court and made a statement.
During cross-examination save and except denial
nothing came out relevant.
Similarly, PW-6 Lum Bahadur Thapa deposed that
on 23.12.2022 he was in his house in the evening while Pradip
and Bishnuram came to his house and reported that their
daughters were kidnapped by some miscreants where they
were going to attend engagement ceremony at Ganganagar
and somebody reported that some miscreants seeing the girls
going alone towards Ganganagar through the village road,
they were forcibly dragged inside the white Alto Van and they
were taken away towards Gandacherra with an ill-motive.
Thereafter, finding no other alternative for himself along with
said Pradip Reang and Bishnu Ram Reang and other people of
the locality rushed out to trace the location of the vehicle and
to recover the victims safely. During search, while they crossed
Dangabari BSF Camp area found the vehicle lying abundant
besides the road and the victim-girls were inside the vehicle
but the driver and his associates could not be traced at the
material time either from the spot or the adjacent area. In
course of discussions with the victims, they reported them
while they were going to attend their relative's house at
Ganganagar that time the accused persons forcibly lifted the
girls inside the vehicle and taken away towards Gandacherra.
On the way, the accused persons molested them inside the
vehicle and also tried to have sexual intercourse with them.
Besides the driver two others were there in the group, one of
the associates followed the vehicle bearing No.TR-04-C-0544
riding on his motor bike. The accused persons molested the
girls one after another but finally somehow they could guess
that some people appearing on the spot suddenly the
miscreants fled away. Further, accused Dharanjoy Reang was
known to the victims as he belongs to Ganganagar. That time
they came to know about the other accused persons.
Thereafter, the victims and the vehicle were removed to their
area and subsequently the FIR was laid by him.
During cross-examination save and except denial
nothing came out relevant.
Similarly, PW-7, Milanjoy Reang, also deposed in
the same manner like PW-6. His evidence also could not be
dismantled.
PW-8, Mungthangha Reang, deposed in the same
manner like PW-6 and PW-7. During cross he stated that he did
not speak to the victim girls.
PW-9, Mandrijoy Reang, deposed in the same
manner like PWs-6,7,8. During cross nothing came out
relevant.
PW-10, Katerai Reang, also supported the
prosecution story. The appellants could not shake out his
evidence during cross-examination.
PW-11, Ratan Debbarma and PW-12, Chiranjit Deb
are the seizure list witnesses.
PW-13, Surjya Kanta Jamatia is Officer-in-Charge of
Ganganagar P.S. who registered the case after receipt of FIR.
PW-14, Benedict Reang is the registered owner of
the vehicle who deposed that he has sold the vehicle to Nibash
Reang but the ownership was not changed. He could not say
anything about the prosecution case.
PW-15, Arunjoy Reang deposed that on the alleged
day after hearing the information they proceeded towards
Gandacherra to trace out the victims and while they reached at
Killa Para, they could notice that the victim girls were inside a
vehicle but no other person could be detected. They removed
the vehicle and the victims to their locality and could know the
said fact and he deposed that one of the miscreants is
Dharanjoy Reang.
During cross-examination nothing came out
relevant.
PW-16, Hebi Ram Reang deposed that on
23.12.2022 in the evening at about 07:15 pm the informant
informed him that some miscreants kidnapped his daughter.
Thereafter, on hearing the information while he was returning
home he could see that a vehicle bearing No.TR-04-C-0544
was passing through Jagabandhu Para Road towards
Ganganagar. Thereafter, he talked with Pradip Reang over
telephone when he could know the informant was proceeding
towards Ganganagar to trace out the vehicle and rescue their
kids and he was asked to follow the vehicle but he failed as the
vehicle accelerated its speed. Later on, on Ampi Road there
was a Camp of CRPF and accordingly they talked with the
villagers to know that whether they could see any vehicle but
they answered in affirmative. The villagers said that they saw a
white car proceeding towards Ampi Road and later on they
could find the vehicle on Ampi Road at Killa Para with three
boys and the victims were inside the vehicle. But the accused
persons somehow could manage to escape. But he could not
identify the number of motor bike. However, he could identify
two of the accused persons as they were belonged to his
locality and they were Rakesh Tripura and Ramani Reang.
Thereafter, the victims were recovered and could know
everything from the victims and the case was submitted.
During cross-examination save and except denial
nothing came out relevant.
PW-17, Unajoy Reang could not say anything about
the prosecution case.
PW-18, Mina Sinha deposed that she examined and
recorded the statements of the victims under Section 161 of
Cr.P.C. when the victims stated her that the accused persons
outraged their modesty by touching their breast and different
parts of the body also reported that the accused persons tried
to commit rape upon them.
During cross-examination nothing came out
relevant.
PW-19, Swapan Sinha is the I/O who laid the
charge-sheet.
During cross-examination, he stated that he did not
collect the age proof certificates of the victims.
These are the synopsis of the evidence on record.
15. From the evidence on record, it appears that to the
alleged PO save and except the two victims no other persons
were there but from the evidence of PWs-1 to 6 and other
witnesses it is crystal clear that on the alleged date the present
accused-appellants and another committed the offence. The
appellants by their cross-examination could not in any manner
discard the evidence on record of the prosecution witnesses.
16. Admittedly, in this case the prosecution could not
prove the birth certificate or any other certificate to
substantiate the age of the victims. Even no medical report is
produced to substantiate the age of the victims. Even there is
no evidence on record that the victims had undergone
ossification test. The informant stated that the ages of the
victims were 16 and 15 years, respectively. Admittedly, in
course of cross-examination, there was no suggestion from the
side of the appellants disputing the age of the victims of this
case.
17. Furthermore, the I/O also specifically stated that he
did not collect any age proof certificates of the victims of this
case. In this regard, Learned Counsel for the appellants relied
upon two citations reported in (2002) 6 SCC 494 in Toran
Singh Vs. State of M.P. wherein in Para Nos.5 and 8 Hon'ble
the Apex Court observed as under:-
"5. We have carefully considered the submissions
made by the learned counsel for the parties. Ordinarily
this Court does not disturb or upset the concurrent
findings recorded by the trial court as affirmed by the
High Court, entering into the domain of appreciation of
evidence. But in a case like this where there was no
proper and objective appreciation of evidence by the
trial court and the High Court, as a first court of
appeal, fails in its duty of reappreciating the evidence
and reviewing the evidence objectively and simply
endorses the conclusion arrived at by the trial court
resulting in patent miscarriage of justice, not only this
Court interferes but it becomes the duty of this Court
to do so to prevent miscarriage of justice. In this case
we have no hesitation to upset the order of conviction
and sentence passed against the appellant for reasons
more than one given hereinbelow:
(i) The motive for the alleged offence is that the
deceased had eloped with the wife of the
appellant. If that be so, it was improbable that
the appellant would have gone from his village
Haider to the other village Miyan Khedi of the
deceased and PW 1 to call them for properly
setting the roof of his house as if no one else
could do the job in his village itself. In the
background of ill will and enmity, he could not
have chosen to call the deceased and his son to
his house and the deceased and his son could not
have gone to the house of the appellant and that
too to stay there overnight. There is no evidence
on record to speak about the deceased and his
son reaching the house of the appellant or their
stay in that house.
(ii) PW 1 was the only eyewitness according to
the prosecution. He being the son of the deceased
is obviously an interested witness. His evidence
ought to have been scrutinized with greater care
and caution. Even otherwise, his evidence is not
corroborated on material aspects by the evidence
of other witnesses. According to the prosecution,
PW 1 had gone to the house of Gyarasa (PW 3) on
the date of the incident and returned to the house
of the appellant at 11.00 p.m. but PW 3 in his
evidence has stated that PW 1 left his house at
the time of sunset in the evening. It may also be
noted here that PW 3 did not support the
prosecution case and he was treated as hostile.
(iii) PW 2 Kamla, chowkidar of the village, stated
that when PW 1 and his brothers were coming to
Village Haider, he met them on the way and told
them that the appellant had killed the deceased
and they need not go further and should return
and go to the police station to lodge the
complaint. PW 2 has stated that he was told by
PW 9 Ghuman Singh about the appellant killing
the deceased but PW 9 Ghuman Singh does not
support the case of the prosecution and the
statement of PW 2. He too was treated as hostile.
(iv) The axe alleged to have been used in the
commission of the offence, said to have been
recovered at the instance of the appellant, was
not produced before the court and there was no
occasion for the doctor to confirm whether
injuries of the nature found on the deceased
could be caused by such an axe.
(v) The conduct of PW 1, the only eyewitness,
that too to a part of the incident is highly
unnatural and improbable. When his father was
being assaulted with axe on the neck and other
parts of the body, he does not make a hue and
cry; he does not try to rescue; the appellant has
only one hand; PW 1 and his father in the
ordinary course would have overpowered him and
it appears doubtful whether the appellant could
assault with his one hand causing so many
injuries on the body of the deceased in the
manner stated; PW 1 does not try to take the help
of the people in Village Haider around the house
of the appellant; he ran to his village Miyan Khedi
and thereafter goes back with his brothers to
Haider and returns to his village again after PW 2
Kamla told them about the murder of their father.
There was delay in lodging the complaint also.
These factors would render the very presence
claimed of PW 1 at the place and time of
occurrence itself doubtful and incredible.
8. In the light of what we have stated above, we find it
difficult to agree with the High Court as to how
deposition of PW 1 Puran Singh inspires confidence. As
is evident from the above para, the High Court instead
of giving benefit of doubt to the appellant, placed the
burden on the defence and found that there was
absence of plausible defence and explanation by the
appellant. The case of the prosecution should rest on
its strength, not on the absence of explanation or
plausible defence by the accused."
Relying upon the same, Learned Counsel submitted
that although there was loophole on the part of the appellants
to dispute the age of the victims for that the prosecution
cannot shift the burden to the defence stating that there was
no cross-examination in this regard from their side.
18. Learned Counsel also referred another citation of
the Hon'ble Supreme Court of India reported in (2005) 9 SCC
769 in State of Punjab and Parveen Kumar wherein in Para
No.10 Hon'ble the Apex Court observed as under:-
"10. While appreciating the credibility of the evidence
produced before the court, the court must view the
evidence as a whole and come to a conclusion as to its
genuineness and truthfulness. The mere fact that two
different versions are given but one name is common
in both of them cannot be a ground for convicting the
named person. The court must be satisfied that the
dying declaration is truthful. If there are two dying
declarations giving two different versions, a serious
doubt is created about the truthfulness of the dying
declarations. It may be that if there was any other
reliable evidence on record, this Court could have
considered such corroborative evidence to test the
truthfulness of the dying declarations. The two dying
declarations, however, in the instant case stand by
themselves and there is no other reliable evidence on
record by reference to which their truthfulness can be
tested. It is well settled that one piece of unreliable
evidence cannot be used to corroborate another piece
of unreliable evidence. The High Court while
considering the evidence on record has rightly applied
the principles laid down by this Court in Thurukanni
Pompiah v. State of Mysore [AIR 1965 SC 939] and
Khushal Rao v. State of Bombay [1958 SCR 552].
Referring the same, Learned Counsel has submitted
that since in this case there are two sets of evidence in such a
situation the benefit should be given in favour of the
appellants.
19. Some more other judgments also relied upon by the
Learned Counsel for the appellants that mere silence during
examination under Section 313 of Cr.P.C. by the appellants
cannot be a sole ground for conviction. In this regard, Learned
Counsel relied upon one citation of the Hon'ble High Court of
Calcutta in CRA 256 of 2007 in Prasanta Biswas Vs. The
State of West Bengal wherein in Para No.17 the High Court
of Calcutta observed as under:-
"17. We are also unable to accept the contention of the
prosecution which has been accepted by the learned
Trial Judge that the accused in his statement under
Section 313 of the Criminal Procedure Code was
obliged to say where he was on the night of 4
November, 2002 or the morning of 5 November, 2002.
Under the criminal jurisprudence in this country, an
accused has the right to remain silent and such silence
cannot be held to be admission of any charge brought
against him. An accused is presumed innocent until
proved guilty. The burden of proving him guilty is on
the prosecution. The accused need not say anything at
all. We may note that in this regard protections of
diverse nature have been granted to an accused under
Article 20(3) of the Constitution of India and Sections
132 and 138 of the Indian Evidence Act, 1872. In the
present case, the accused did not run a case of alibi.
He merely said that he was not in the house at the
time of the victim's death. He need not have said that
also. The onus was solely and wholly on the
prosecution to establish his presence at the scene of
occurrence, at or around the time of occurrence to
connect him with the murder of the victim. This the
prosecution has failed to do even by way of
circumstantial evidence. The circumstantial evidence
relied upon by the prosecution and the learned Trial
Judge far from completes the chain of sequence and
events so as to lead to an inescapable conclusion that
it was only the accused and no one else who could
have committed the crime."
In addition to that, some other citations were
referred but in my considered view those are not relevant for
the decision of this case.
20. However, after perusal of the entire evidence on
record of the prosecution and after hearing detailed argument
of both the sides it appears that the appellants before the
Learned Trial Court could not project any defence case to
disbelieve the prosecution story. Furthermore, it has already
been stated that, except the victims, no other persons were
present at the place of occurrence; all other witnesses are
hearsay witnesses.
21. Admittedly, in this case no medical report is
produced but since this is a case under Section 354A of IPC
and under Section 8 of the POCSO Act. So, in proving those
charges medical evidence is not required to be proved by the
prosecution. However, considering the materials on record, it
appears that it was the duty of the prosecution to prove atleast
any document of the school to substantiate the age of the
victims or the prosecution could produce the birth certificate of
the victims to substantiate the prosecution allegation. But
surprisingly, there was no effort in this regard from the side of
the prosecution. It is the settled position of law that in a
prosecution under the POCSO Act where the age of the victim
is a foundational fact so by mere adducing oral evidence it
would be risky to sustain conviction unless corroborated by
reliable documentary evidence. In the given case since the
parents of the victims stated their age as 16 years and the
victims also stated their age as 16 years in course of their
deposition and as it has already been stated that the specific
date of birth could not be given by the parents of the victims or
by the victims themselves, so, in such a situation it would not
be proper to render conviction upon the sole testimony of the
victims in absence of documentary evidence on record where
the victim girls stated that they are students. Atleast
prosecution could adduce admission register or any other
connected documents to substantiate their age. Situated thus,
in absence of reliable documentary evidence on record in the
considered opinion of this Court the present appellants have to
be acquitted on benefit of doubt from the charges levelled
against them punishable under Section 8 of POCSO Act. But
the prosecution has been able to prove the charge levelled
against the appellants under Section 363/354A/511 of IPC.
22. In the result, the appeal is partly allowed. The
judgment and order of conviction and sentence dated
05.03.2024 in connection with Case No.Special (POCSO) 03 of
2023 delivered by Learned Special Judge (POCSO), Dhalai
Judicial District, Ambassa in respect of the appellants
punishable under Section 363/354A/511 of IPC is hereby
upheld and affirmed accordingly and the appellants are
convicted under the aforesaid provisions of law. But the
prosecution has failed to prove the charge beyond reasonable
doubt against the appellants under Section 8 of POCSO Act, as
such they are hereby acquitted on benefit of doubt from the
said charge levelled against them under Section 8 of POCSO
Act. As the original judgment of the Learned Trial Court
remained silent in respect of the mode of suffering of
sentences so it is further ordered that the sentences affirmed
by this Court shall run consecutively.
With this observation, this appeal stands disposed
of.
The convict appellants are asked to surrender before
the Learned Trial Court below on or before 08.08.2025 to
serve out the sentence.
Send down the LCR along with a copy of this
judgment/order immediately.
Also supply a copy of this judgment/order to the
Learned Counsel for the appellants for information and
compliance.
Pending applications, if any, stands disposed of.
JUDGE
Amrita
AMRITA DEB AMRITA DEB
Date: 2025.07.31
10:31:37 +05'30'
