HON'BLE JUSTICE DR. T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
[Dr.T. Amarnath Goud, J]
[1] Heard Ms. R. Guha, learned counsel as well as Mr. A. Acharjee,
learned Legal Aid Counsel appearing on behalf of the appellants. Also heard
Mr. R. Saha, learned Addl. P.P. representing the State.
[2] The present appeal is filed under Section 374 of Cr. P.C against the
Special Judge (POCSO), North Tripura, Dharmangar, in case No. Special
convicted U/S 376D of IPC and under section 6 of the POCSO Act. They have
the POCSO Act and also sentenced to pay fine of Rs. 10,000/- (Rupees ten
imprisonment for 6(six) months. Further, the appellants have been sentenced to
(six) months. It has been observed by the learned Court below that both the
sentences of imprisonment shall run concurrently.
covered her mouth. The victim turned back and saw the accused persons
confined her in a jungle hut. Thereafter, accused Gan Urang @Gana committed
other accused were guarding the jum hut from outside. On that night, at about
2200 hours, the accused persons released the victim and threatened to kill her if
she discloses the incident to anyone. The victim on the next date of the incident,
lodged an ejahar with Damcherra P.S. and a specific case was registered and the
investigation commenced. The I.O. on completion of investigation, submitted
supplied to the accused persons.
explained to them to which, they pleaded not guilty and claimed to be tried.
decided the case by its judgment and order dated 16.09.2023 passed in Case No.
The surety of accused Basia Urang is also discharged from the liability of
the bail bond.
I have heard both the convicts on the question of sentence and they claimed
themselves as innocent and prayed for mercy of this Court.
As discussed in the preceding paragraphs the incident committed by the
convicts was in execution of a well thought plan and the victim who is a minor girl
of 16 years was subjected to penetrative sexual assault not once but twice by the
convict Gan Urang @ Gana. The other convict is equally liable as he facilitated the
convict Gan Urang @ Gana in commission of such offence.
Having considered the aforesaid facts this court is of the view that both the
convicts deserved to be sentence to imprisonment for a minimum term as prescribed
under Section 6 of the POCSO Act and under Section 376D of the IPC along with
fine.
The convicts Gan Urang @ Gana and Pintu Urang are accordingly
sentenced to suffer rigorous imprisonment for a term of 20 (twenty) years under
Section 6 of the POCSO Act.
The convicts Gan Urang @ Gana and Pintu Urang are also sentenced to pay
fine of Rs. 10,000/-(Rupees ten thousand) each under section 6 of the POCSO Act
and in default they shall have to undergo further imprisonment for 6(six)months.
The convicts Gan Urang @ Gana and Pintu Urang are further sentenced to
suffer rigorous imprisonment for a term of 20 (twenty) years under Section 376D of
the IPC.
The convicts Gan Urang @ Gana and Pintu Urang are also sentenced to pay
fine of Rs. 10,000/-(Rupees ten thousand) each under section 376D of the IPC and in
default they shall have to undergo further imprisonment for 6(six)months.
Both the sentences of imprisonment shall run concurrently
The period of detention undergone in judicial custody by the convicts
during the investigation and trial shall be set off from the total sentence of
imprisonment......................."
[7] Aggrieved by the above-noted impugned order dated 16.09.2023
passed by the learned Court below, the appellants herein 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 16.09.2023 passed by ****** Special
Judge (POCSO), North Tripura, Dharmangar, in case No. Special (POCSO) 12 of
2019 and further please to acquit the convict appellant for fair ends of
justice............"
[8] Mr. A. Acharjee, learned Legal Aid Counsel appearing for the
appellants submits that the learned trial Court below ought to have held that the
alleged presence of convict appellants at the alleged place of occurrence,
alleged participation of the appellants in the commission of alleged offence are
absolutely doubtful and on the basis of such evidence, the appellants could not
be convicted for the alleged offence. He, further submits that there are
inconsistencies in the statement of the victim recorded under Section 164(5) of
Cr.P.C. and deposition of witness as P.W.2 i.e. the victim and the learned trial
Court below arbitrarily, relied on the improved versions of the witnesses,
convicted and sentenced the appellants. Mr. Acharjee, learned counsel further
submits that P.W. 16, the Doctor in his examination in chief, stated that the
result of examination of TSFSL of the victim was negative, but, the learned trial
Court did not consider the same. To support his contention, learned Legal Aid
Counsel has placed reliance on the judgment of the Hon‟ble Supreme Court in
State (GNCT of Delhi) vs. Vipin @ Lalla in case No. Criminal Appeal No.94
of 2025 (Arising out of SLP (Crl.) No.11687 of 2019) and urges this Court to
set aside the impugned order dated 16.09.2023 acquitting the appellants herein.
[9] Ms. R. Guha, learned counsel appearing for the appellants has also
made her submission almost in a similar fashion as made by Mr. A. Achearjee,
learned Legal Aid Counsel. Besides these, she contends that in the FIR, the
victim mentioned about one of the accused as „Sri Man Urang‟ while in her
deposition of witness as P.W. 2, she mentioned the name of that accused as
„Gona Orang‟. It is also contended that in the FIR version, there were other two
accused persons and the second accused person(A-2) was the husband of first
accused (A-1)‟s sister (brother in-law of A-1) and his name was not known to
the victim and the third accused person (A-3) was another unidentified boy.
According to the FIR version, the A-1 gagged her mouth while other two held
her hands and dragged her to a jum field in the jungle over the lunga. She
submits that if the victim girl was gagged and dragged to the jungle, there might
be injury, but, as per the medical report no such injury was found on the body
of the victim. It is also submitted that no specific allegation was brought against
the A-2, i.e. Pintu Urang and another accused A-3 i.e. Basia Urang but, the
learned trial Court has convicted and sentenced the A-2 alongwith A-1 but,
acquitted the A-3 from the case.
[10] Ms. Guha, learned counsel further contends that though it is
reflected that the birth certificate of the victim was seized but the same was not
examined during the trial. In the absence of proper verification of the age of the
victim, provisions of POCSO Act shall not attract. She, therefore, prays for
setting aside the impugned order dated 16.09.2023 acquitting the appellants
herein.
[11] On the contrary, Mr. R. Saha, learned Addl. P.P. appearing for the
State vehemently opposes the submissions made on behalf of the appellants. He
contends that learned trial Court below on perusal of all the relevant records and
examining all the relevant witnesses has decided the case by its order dated
16.09.2023 in case No. Special (POCSO) 12 of 2019 and the same should not
be interfered with. He, therefore, urges this Court to dismiss the instant appeal
filed by the appellants. To support his contention, learned Addl. P.P. has placed
reliance on the judgment of the Hon‟ble Apex Court passed in State of Punjab
vs. Gurmit Singh and others reported in (1996) 2 SCC 384.
[12] Heard the submissions made at the Bar. Perused the material
evidence on record.
[13] It is seen from record that the birth certificate of the victim was
seized but the same was not examined during the trial. It is also seen that P.W.
15 in his deposition stated before the trial Court that he went to Rowa
Panchayet with his Officer Sub-Inspector who seized birth register from the
office of the Rowa Gan Pancxhayet under Panisagar R.D. Block in connection
with the case and the said P.W. 15 identified his signature on the seizure list. In
cross-examination, he said that he could not say about the contents of the said
register. The birth certificate or other age-related documents of the victim must
be examined and exhibited during the trial since it is essential to prove that the
victim is below 18 years of age for the applicability of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act for short). The learned
trial Court below ought to have proved the age of the victim through a
competent witness and also cross-examination by the defence, if necessary, but
the learned trial Court did not do so. Such failure in proving the age of the
victim, has weakened the prosecution‟s case under POCSO Act. Thus, this
Court is of the view that the conviction of the accused persons by the learned
trial Court under the POCSO Act is liable to be set aside.
[14] It is also observed that as per the FIR, there were other two
accused persons alongwith accused No.1(A-1). The second accused person(A-
2) was the husband of the first accused (A-1)‟s sister and his name was not
known to the victim and the third accused person (A-3) was another
unidentified boy. It was contended in the FIR that the A-1 gagged her mouth
while other two held her hands and dragged her to a jum field in the jungle over
the lunga but, there has been no clear description as to how she was gagged and
dragged and as per the medical report, no injury on the body of the victim due
to dragging or gagging was reflected. In the statement of the victim dated 29th
August, 2017 recorded under Section 164(5) of the Cr.P.C. also the victim
could not name the accused No.2 (A-2), she said that the said accused person is
identified by her as he is the husband of a lady who is known to her. In her
deposition of witness as P.W. 2, the victim deposed that she could identify
Gona Orang and his brother in law who is the husband of his sister but another
person could not be identified as he covered his face with a napkin. It was
further deposed that Gona Orang along with others dragged her to a tilla land
wherein a hut was there and Gona Orang asked her to marry otherwise he
would killed her. It was also contended by the victim that she was in the said
jum hut till 10 pm and it was raining havoc at the material time and in the
meantime, the accused Gona Orang already forcibly had sexual intercourse with
her in two times but, it has not been clearly mentioned by the victim that during
the rain, where the other accused persons i.e. A-2 & A-3 were waiting, inside
the hut or outside the hut. Moreso, no allegation of rape was ever brought by
the victim against the A-2 i.e. Pintu Urang and another accused A-3 i.e. Basia
Urang and according to the versions of the victim, they were only present
during the alleged incident but, the learned trial Court has convicted and
sentenced the A-2 alongwith A-1 but, acquitted the A-3 from the case.
[15] In view of the above, since the case of kidnapping or rape has not
been proved against him, this Court is of the opinion that conviction U/S 376D
of IPC cannot be imposed upon the A-2 i.e. Pintu Urang and therefore, he is
acquitted from the conviction U/S 376D of IPC and under Section 6 of the
POCSO Act as sentenced by the learned trial Court below by its impugned
order dated 16.09.2023 in case No. Special (POCSO) 12 of 2019.
[16] Now, to examine the case in respect of A-1 i.e. Gan Urang @ Gana
this Court feels it necessary to revisit some statements recorded during the trial.
[17] In the FIR, the victim contended that on 27.08.17 AD, Sunday, at
about 4 pm, she went to fetch water with a pitcher from a well located on a
lunga land to the west of their house. Her parents had gone to the Damcherra
hospital at the time. While she was fetching water with a bucket, someone
suddenly gagged her mouth from behind using her dupatta and began pulling
her forcefully. She tried to raise an alarm but was unable to do so due to her
mouth being gagged. Upon turning, she could recognize one person, namely,
„Sri Mon Urang‟. Another person, whose name was not known to her was
his(Mon Urang) sister‟s husband, resident of Sandibasa, P.S. Damcherra and
there was another unidentified boy. It was further contended that Mon Urang
gagged her mouth, while the other two held her hands and dragged her to a jum
field in the jungle over the lunga. Holding her captive there, Mon committed
rape upon her twice by forcing her on the floor in the jum hut and she pleaded
several times, but, they threatened her that if she raises voice then they will kill
her and leave her body in the jungle. Around 10:00 PM, during rain they
released her. Before leaving, they warned her not to disclose the incident to
anyone, threatening to come to her home and kill her if she did so. She returned
home crying and out of fear and shame, she did not tell anyone and spent the
night alone in the hut on the western side of their house. Later that night, police
from Damcherra Police Station arrived and found her in that room. When
woman police officer questioner her, she was too fearful and ashamed to speak.
But in the cross-examination, it was stated by the victim that she disclosed to
the lady police officer that she had a quarrel with her brother and went into
jungle. It was also contended in the FIR that on 28.08.17 in the morning, when
her father returned home from the hospital, she described him about the entire
incident.
[18] In the statement of the victim recorded under Section 164(5)
Cr.P.C. dated 29th August, 2017, she named the accused who committed rape
upon her as „Gon‟ and other two stood guard at a distance. She further
contended that after committing rape upon her, Gon told her to flee with him,
but she refused. Gon also threatened to kill her if she don‟t agree in the same
manner as a Reang woman who had been hacked and murdered, warning that
they would leave her body in the jungle. It may clearly be observed that in the
said statement recorded under Section 164(5) Cr.P.C. the victim did not
mention that she was raped twice by the accused named as Gon whereas, in the
FIR it was mentioned that the accused „Man Urang‟ raped her twice. It was also
not mentioned in the FIR that the accused who committed rape upon the victim
told her to flee with him.
[19] In the deposition of witness as P.W.2, the victim stated that Gona
Orang along with others dragged her to a tilla land wherein a hut was there and
Gona Orang asked her to marry otherwise he would kill her. It was also
contended that at the night of the incident, she had also reported the matter
about the incident to her grand-mother and her sister. Whereas, in the FIR the
victim deposed that she returned home crying and out of fear and shame, she
did not tell anyone and spent the night alone in the hut on the western side of
their house.
[20] On perusal of the records, more particularly, the FIR, statement of
the victim recorded under Section 164(5) Cr.P.C. and deposition of witness as
P.W.2 i.e. the victim, this Court finds that there are inconsistencies in the
statements made by the victim during trial from time to time, which create
clouds of doubts in taking any decision with regard to the case in hand. There
was no eye witness of the alleged incident and nobody saw the accused persons
forcibly taking the victim at 4 pm to the jum hut or nobody also saw any of the
accused persons coming out of the jum hut after commission of alleged
incident. These sorts of inconsistencies in the statements may weaken the
prosecution‟s case.
[21] As per the FIR version, the accused no.1(A-1) gagged mouth of the
victim, while the other two held her hands and dragged her to a jum field in the
jungle over the lunga but she did not describe clearly the way in which she was
dragged and as per medical report no injury due to dragging and no evidence of
committing rape has been reflected. It was also alleged that holding her captive
there, A-1 committed rape upon her twice by forcing her on the floor in the jum
hut. But, the forensic report marked as Exhibit.9 indicates that no seminal
stains/spermatozoa of human origin was detected and in the Exhibit.10 i.e. Final
Opinion of sexual Assault Case, it has been opined that "As per the State
Forensic Science Laboratory Report, there is no suggestive outcome". P.W. 16,
the medical officer also deposed that "The result of the examination of the
exhibits were negative."
[22] This Court upon discussions made above, feels it necessary to
extract the relevant contents from the judgment of the Hon‟ble Apex Court
passed in State (GNCT of Delhi) vs. Vipin @ Lalla in case No. Criminal
Appeal No.94 of 2025 (Arising out of SLP (Crl.) No.11687 of 2019) as
referred by the learned Legal Aid Counsel for the appellants, which read as
under:
"....9. We have gone through the order of the Trial Court as well as the High
Court. The only worthwhile evidence which has been produced before the
Court by the prosecution is the deposition of the prosecutrix herself.
Although the age of the prosecutrix is 16 years and four months which has
not been seriously disputed (accused was about 20 years of age at the time
of the incident). Nevertheless the fact remains that the medical
examination which was conducted on 18.09.2014 revealed that no injuries
were detected on the body of the prosecutrix. Though it was stated in the
medical report that her hymen was torn. Definitely the prosecutrix in her
examination-in-chief as well as in cross-examination has stuck to the fact
that she was raped by the accused but the fact remains that she has
contradicted her statement at more than one place. Moreover she has said
in her statement under Section 164 CrPC she had hit the accused on her
head by Danda whereas in her examination-in-chief she stated that she hit
the accused on his foot. When the accused had surrendered on 10.10.2014
none of these injuries were noticed on the body of the accused.
10. Although it is absolutely true that in the case of rape, conviction
can be made on the sole testimony of the prosecutrix as her evidence is in
the nature of an injured witness which is given a very high value by the
Courts. But nevertheless when a person can be convicted on the testimony
of a single witness the Courts are bound to be very careful in examining
such a witness and thus the testimony of such a witness must inspire
confidence of the Court. The testimony of the prosecutrix in the present
case thus has failed to inspire absolute confidence of the Trial Court, the
High Court and this Court as well........."
[23] In view of the inconsistencies in the statements of the victim made
in the FIR, Statement recorded under Section 164(5) and the deposition of
witness as P.W.2 as discussed above and keeping in view the afore-noted
judgment of the Hon‟ble Apex Court cited supra, this Court is of the opinion
that the prosecution has failed to prove its case beyond reasonable doubt.
Therefore, benefit of doubts is extended to the accused-appellant namely, Gan
Urang @ Gana (A-1) and hereby, he is acquitted from the conviction U/S 376D
of IPC and under Section 6 of the POCSO Act as sentenced by the learned trial
Court below by its impugned order dated 16.09.2023 in case No. Special
(POCSO) 12 of 2019.
[24] With the above observations, both the appellants are hereby
acquitted from the charges brought against them in the impugned judgment of
conviction and sentence dated 16.09.2023 passed by the Special Judge
(POCSO), North Tripura, Dharmangar, in case No. Special (POCSO) 12 of
2019 whereby and whereunder they were convicted U/S 376D of IPC and under
section 6 of the POCSO Act. We are also of the opinion that the judgment
placed by the learned Addl. P.P. is not applicable to the facts and circumstances
of the present case. Accordingly, the impugned order dated 16.09.2023 passed
by the learned trial Court below is hereby set aside. The appellants be released
if not required in any other case(s).
[25] Resultantly, the instant appeal is hereby allowed and accordingly
the same is disposed of. As a sequel, miscellaneous application(s), pending if
any, shall also stand closed.
B. PALIT, J DR.T. AMARNATH GOUD, J
Sabyasachi G.
SABYASACHI GHOSH GHOSH
Date: 2025.09.16 15:43:37 +05'30'
