Tripura High Court

Sri Akash Dey @ Joy vs State Of Tripura on 15 May, 2025

Author: T. Amarnath Goud

Bench: T. Amarnath Goud

                                 Page 1 of 8




                         HIGH COURT OF TRIPURA
                               AGARTALA

                           Crl. A(J) 62 of 2024

  Sri Akash Dey @ Joy

                                                     ......Appellant(s)

                                Versus

  State of Tripura

                                                 .......Respondent(s)

  For the Appellant(s)           : Mr. Ratan Datta, Adv.
                                   Ms. S. Nag, Advocate.
                                   Mr. Sourav Debnath, Advocate.
                                   Ms. H. Das, Advocate.
                                   Mr. A. Baidya, Advocate.


  For the Respondent(s)          : Mr. Raju Datta, P.P.

  Date of hearing & delivery
  of Judgment & order            : 15.05.2025.

  Whether fit for reporting      : No                        __


             HON'BLE MR. JUSTICE T. AMARNATH GOUD
               J U D G M E N T & O R D E R(ORAL)

Heard Ms. S. Nag, learned counsel appearing on behalf of

Mr. Ratan Datta, learned counsel for the appellant. Also heard Mr.

Raju Datta, learned P.P. appearing for the State-respondent.

[2] This present appeal is filed under Section 374 (2) of

Cr.PC against the impugned Judgment and order of conviction and

sentence dated 05.08.2023 passed by the learned Special Judge

(POCSO), West Tripura, Agartala in Case No. Special (POCSO) 42 of

2019 whereby and whereunder the appellant has been convicted

under section 10 of POCSO Act and thereby sentenced him to suffer

Rigorous imprisonment (RI) for 05 (five) years and to pay a fine of

Rs.20,000/-(Rupees Twenty thousand only) and in default of

payment of the same, to suffer simple imprisonment (SI) for a term

of 02 (two) months.

[3] The prosecution story as per the version of the

informant, i.e. the mother of the victim girl in brief is that, on

26.07.2019 at evening time her 11 year old daughter went for

grazing their goat, at that time, convict appellant Joy Dey forcefully

by pressing her mouth undressed her and tried to commit rape

upon her. Based on such incident informant lodged a complaint at

East Agartala Women PS on 29.07.2019 and accordingly, the

investigation was started. Thereafter, the I.O. taking the task of

investigation, examined the victim, informant and other available

witnesses and recorded their statements under Section 161 of the

Criminal Procedure Code (Cr.P.C. for short) and arrested the convict

appellant and forwarded to the convict before the learned Court on

the following day. On completion of investigation, the I.O. laid

charge-sheet against the convict appellant. During trial, upon

hearing submissions made by the parties and on perusal of the

record, learned Court framed charge under Section 354B of IPC and

Section 10 of POCSO Act against the Convict appellant and

subsequently, the trial commenced. The Prosecution adduced

evidence and also exhibited certain documents. The convict

appellant was examined U/S 313 of Cr. PC and thereafter, the

convict appellant pleaded not guilty and claim to be tried. After

hearing of both the sides learned Trial Court by its judgment and

order dated 05.08.2023 passed in Case No. Special (POCSO) 42 of

2029, convicted the appellant, Akash Dey to suffer RI for 05 years

and to pay a fine of Rs. 20,000/- in default of payment, to suffer

simple imprisonment for further 02 (two) months for commission of

offence punishable U/S 10 of POCSO Act.

[4] Aggrieved by the aforesaid impugned order dated

05.08.2023 passed by the learned Court below in case No. Special

(POCSO) 42 of 2029, the appellant has preferred the instant appeal

seeking the following reliefs:

"i. Admit this appeal,

ii. Call for the record,

iii. Issue notice upon the respondent, and

iv. After hearing the parties be pleased enough to set aside the impugned Judgment of conviction and sentence dated 05.08.2023 passed by the Ld. Special Judge (POCSO) *****, West Tripura, Agartala in Case No. Special (POCSO) 42 of 2019 whereby and where under the appellant has been convicted Under Section 10 of the POCSO Act and

thereby sentenced him to suffer Rigorous imprisonment for 05 years, and order to pay a fine of Rs 20,000/- (Rupees Twenty thousand only) and in default of payment of the same, he shall suffer simple imprisonment for a term of 02 (two) months........."

[5] Ms. S. Nag, learned counsel appearing on behalf of Mr.

Ratan Datta, learned counsel for the appellant submits that learned

Court below held the convict appellant to be guilty of alleged

offences on the basis of no evidence inasmuch as the evidence on

record does not constitute the alleged offence and in no case

implicated the convict appellant in the commission of alleged

offence. She submits that P.W. 5, who is the eye witness of the

alleged occurrence in his cross examination stated that beside their

playground there is a jungle where one Guava tree is there and

they often would go there to have Guavas and he knew the Convict

appellant Akash Dey @ Joy, Prantosh Datta and Ankit headed

towards the Guava tree when they found the victim girl was also

following them. It was further stated by P.W. 5 that they asked her

not to follow them or else her father would get angry, in spite of

that, she came after them and reached the Guava tree and

subsequently they had started collecting Guavas when joy tried to

snatch two Guavas from the victim girl and in that course, there

was a scuffling when the victim girl fell on the ground and cried out.

Thereafter, her father came to the spot and assaulted Joy Dey

hearing about the incident from her and took her away from there.

[6] Learned counsel contends that from the cross

examination of the eye-witness i.e. Pw.5, it is clear that the victim

girl sustain only bodily injury due to scuffling, while the convict

appellant tried to snatch guava from the victim girl. But the learned

Court below failed to appreciate the same. She, therefore, urges

this Court to set aside the impugned order dated 05.08.2023

passed by the Ld. Special Judge (POCSO), West Tripura, Agartala in

Case No. Special (POCSO) 42 of 2019.

[7] On the contrary, Mr. Raju Datta, learned P.P. opposes

the submissions made on behalf of the appellant. He, contends that

learned trial Court on perusal of all the material evidence on record,

has convicted the accused-appellant by its order dated 05.08.2023

in Case No. Special (POCSO) 42 of 2019, the same should not be

interfered with.

[8] Heard the submissions made at the Bar. Perused the

material evidence on record.

[9] It is seen from record that the appellant was in custody

for one year and four months i.e. since the time of awarding

conviction and sentence upon him and by the order of this Court

dated 05.12.2024 passed in IA No. 02 of 2024 in Crl. A(J0 No.62 of

2024, bail was granted to him on furnishing bond of Rs.30,000/-

with one surety of like amount to the satisfaction of the learned trial

Court.

[10] On perusal of record, it appears that the FIR was lodged

on 29.07.2019, though the alleged incident of sexual assault took

place on 26.07.2019 and the delay of three days in lodging the FIR,

was not explained by the complainant.

[11] It is also seen from record that the Medical Officer,

P.W.7, deposed before the trial Court that he had medically

examined the victim girl and she was having an alleged history of

physical assault and while examining the victim, he did not find any

external injury except some tenderness over the pelvic region.

[12] The P.W. 5 i.e. the eye witness for the prosecution, in his

cross-examination, stated that beside their playground there is a

jungle where one guava tree is there and they often would go there

to have guavas. He further stated that he knew Akash Dey @ Joy

and on 26.07.2019, at about 4:30-5:00 pm he alongwith Joy Dey,

one Prantosh Datta and one Ankit headed towards the guava tree

when they found the victim girl was also following them. It was also

stated by P.W. 5 that they asked her not to follow them or else her

father would get angry, in spite of that, she came after them and

reached the guava tree and thereafter they had started collecting

guavas when joy tried to snatch two guavas from the victim girl and

in that course, there was a scuffling when the victim girl fell on the

ground and cried out. Subsequently, her father came to the spot

and assaulted Joy Dey hearing about the incident from her and took

her away from there.

[13] However, there are clear inconstancies between the

statements made by the P.W.5 i.e. the eye-witness and the victim

girl i.e. P.W.3 during their respective cross-examination. The P.W.

3 i.e. the victim girl in her cross-examination before the trial Court

made the following statement:

"......It is not a fact that on the alleged evening Joy Dey, Ajay Rudra Paul

and two / three others were on way towards the Guava tree or that I have

also followed them when I went to get my goat. It is not a fact that near

the Guava tree I have collected some Guavas, which accused Joy Dey was

trying to snatched away. It is not a fact that in course of such scuffling I

fell on the ground and sustaining injury, I cried out, where-after my father

came to the spot. It is not a fact that after hearing from me about

snatching of Guavas, my father assaulted Joy for his aggression, where-

after he took me back home. It is not a fact that only for the injury I

sustained while scuffling with Joy, my parents took me to the hospital for

treatment."