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2018 DIGILAW 297 (TRI)

Amar Suklabaidya v. State of Tripura

2018-11-28

S.TALAPATRA

body2018
JUDGMENT : S. Talapatra, J. Heard Mr. S. Lodh, learned counsel appearing for the appellant as well as Mr. B. Choudhury, learned Public Prosecutor appearing for the state. 2. This is an appeal under section 374(2) of the Cr.P.C., 1973 from the judgment and order of conviction and sentence dated 24.03.2017 delivered in Special (POCSO) 32 of 2015 by the Special Judge, North Tripura, Dharmanagar. 3. By the said judgment, the appellant has been convicted under Section 354B of the IPC and section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act'). Pursuant thereto, the appellant has been sentenced to suffer rigorous imprisonment for 3(three) years and to pay a fine of Rs. 10,000 (rupees ten thousand) for commission of offence punishable under Section 8 of the POCSO Act, with default imprisonment for 6(six) months. It has been directed that on realization of fine, the money should be paid to the victim as compensation and the said money be managed in a fixed deposit till she attained the majority. No separate sentence has been given for commission of offence punishable under Section 354B of the IPC. 4. Briefly stated, the prosecution case is that from the complaint of the victim, PW.2 (the name is withheld for protection of her identity), it revealed that on 17.08.2015 when she went to visit her grandmother, she visited to a neighbouring quarters. Before she arrived in her grandmother's place, her grandmother left for the office. At that time, one boy who was working in the neighbouring quarters saw her and asked her to bring a piece of wood. Then, the said boy entered in her grandmother's quarters and tried to remove her pant from her wearing with evil motive. She punched on the chest of that boy and scolded him. Thereafter, the boy held her legs and told her not to say the incident to anyone. Then she rushed to the office of her grandmother, but her grandmother was also not available there. Then she informed a lady the entire incident and later on she informed the said incident to her grandmother. The victim came to know that the name of that boy was Amar Suklabaidya, the present appellant. 5. Then she rushed to the office of her grandmother, but her grandmother was also not available there. Then she informed a lady the entire incident and later on she informed the said incident to her grandmother. The victim came to know that the name of that boy was Amar Suklabaidya, the present appellant. 5. The victim submitted the complaint orally to the police and on the basis of the said complaint, Dharmanagar Women P.S. Case No.2015 WDN 013 dated 17.08.2015 was registered under Section 354B of the IPC and under Section 8 of the POCSO Act. The investigation was carried out by one, Rinki Debbarma, one Sub-Inspector of Police (PW.6). 6. On completion of the investigation, the final police report under section 173(2) of the Cr.P.C., 1973 was filed against the appellant for commission of the offence punishable under Section 354B of the IPC and under Section 8 of the POCSO Act, 2012. The police papers were committed to the Special Court, which took cognizance and framed the charge under Section 354B of the IPC and under 'Section 7' of the POCSO Act, punishable under Section 8 of the POCSO Act against the appellant for intending to outrage the modesty of the victim (PW.2) and for acting with sexual intent to touch the body of the victim. The appellant pleaded innocence and claimed to be tried in accordance with law. 7. To substantiate the charge, the prosecution adduced as many as 7(seven) witnesses including the victim and introduced 7(seven) documentary evidence including the oral ejahar (Exbt.1). 8. Mr. S. Lodh, learned counsel appearing for the appellant has submitted that the age of the victim has not been established by the prosecution with legal evidence and the evidentiary materials is inadequate for substantiating the charge under Section 354B of the IPC and under Section 8 of the POCSO Act. Mr. Lodh, learned counsel, having referred to the provision of Section 7 of the POCSO Act, has submitted that the appellant has not committed any sexual assault as defined under Section 7 of the POCSO Act. Section 7 of the POCSO Act reads as under: "7. Mr. Lodh, learned counsel, having referred to the provision of Section 7 of the POCSO Act, has submitted that the appellant has not committed any sexual assault as defined under Section 7 of the POCSO Act. Section 7 of the POCSO Act reads as under: "7. Sexual Assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault." There is no proof of sexual intent at all. The punishment for sexual assault has been provided under Section 8 of the POCSO Act, 2012. Such punishment may extend to 5 (five) years, but that cannot be less than 3(three) years. 9. Mr. Lodh, learned counsel has categorically stated that there are no ingredients of Section 354B of the IPC as for substantiating the commission of offence under Section 354B of the IPC it should be assault or use of criminal force with intent to disrobe and there should be intention of disrobing or compelling her to be naked. According to Mr. Lodh, learned counsel no criminal force was applied on the victim by the appellant. 10. From the other side, Mr. A. Roy Barman, learned Addl. Public Prosecutor appearing for the state has categorically submitted that the evidence is in abundance to show that there was sexual assault as well as there was attempt to make the victim naked. He has referred to the statement of the victim (PW.2) as made in the trial. Part of the said statement reads as under: ".... one of the carpenter followed me and entered into the quarter room and suddenly he tried to make me naked. He pulled of my pant to a great extent and I fell ashamed of....." The victim has identified the carpenter (the appellant) who did the sexual act. Mr. Roy Barman, learned Addl. PP has categorically stated that the finding of conviction cannot be faulted with. 11. Before we proceed to appreciate the evidence it would be appropriate to refer Section 42 of the POCSO Act, which has provided as under: "42. Mr. Roy Barman, learned Addl. PP has categorically stated that the finding of conviction cannot be faulted with. 11. Before we proceed to appreciate the evidence it would be appropriate to refer Section 42 of the POCSO Act, which has provided as under: "42. Alternative punishment.- Where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E or section 509 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree." Thus, under the two provisions the sentence cannot simultaneously be awarded. Though the trial court has refrained from awarding the appellant punishment under Section 354B of the IPC, but that is not gratis, it is a statutory imperative. 12. Be that as it may, the evidence is as thin as the statement of PW.2, the victim as quoted at the time of recording submission of Mr. Roy Barman, learned Addl. Public Prosecutor. PW.1, Smt. Aparna Deb (Paul) has corroborated the part of the statement of the victim that she visited the house of Sabitri Paul (the victim's grandmother). When the victim met her (PW.1), she had narrated what the appellant did with her. She has further stated that the appellant had been detained by the local people. 13. PW.3, Smt. Anita Roy has also vouched in the trial that the victim lamented that "one person behaved badly with her". She took the victim to one Smt. Aparna Deb Paul (PW.1). 14. PW.4, Sri Bokul Deb has produced the Birth Certificate (Exbt.3) of the victim. According to that birth certificate, the date of birth of the victim is 30.04.2006 and the said birth certificate was issued under section 12 of the Registration of Births and Deaths Act, 1969. 15. PW.5, Sabitri Paul, the grandmother of the victim had been declared hostile as she did not support the prosecution case. 16. PW.6, Smt. Rinki Debbarma had investigated the case and she has narrated briefly how she recorded the evidence, seized the birth certificate etc. 15. PW.5, Sabitri Paul, the grandmother of the victim had been declared hostile as she did not support the prosecution case. 16. PW.6, Smt. Rinki Debbarma had investigated the case and she has narrated briefly how she recorded the evidence, seized the birth certificate etc. She has also stated that the statement of the victim was recorded under section 164(5) of the Cr.P.C., 1973 Thereafter, on completion of the investigation she filed the final police report by sending the appellant to face the trial. 17. PW.7, Smt. Swarna Debbarma, a Sub-Inspector of Police has stated that the victim had complained her that on previous Saturday when she was in the PWD quarters allotted to her grandmother, the appellant 'attempted' to remove her pant. In the statement recorded under section 164(5) of the Cr.P.C., 1973 the victim has simply stated that the appellant 'tried' to pull off her pant and at that time she pushed her back and came out of the room. 18. After recording the evidence of the prosecution, the appellant was examined under section 313 of the Cr.P.C., 1973 where the appellant had made out a definite case by stating that as the victim stole a wooden piece, he gave her a slap and out of grievance she has falsely implicated him in this case. 19. Having appreciated the evidence and the submission made by the learned counsel for the parties, there cannot be any doubt about admissibility of the birth certificate inasmuch as it had come from a statutory authority through the mother of the victim and hence the submission as made on behalf of the appellant that the age of the victim is not proved to the hilt, cannot be accepted. Thus, in this regard the finding as returned by the trial court cannot be interfered with. But, this court finds that the offence as alleged to have been committed by the appellant has neither come under Section 354B of the IPC for absence of the criminal force nor under Section 7 of the POCSO Act, inasmuch as there is no allegation that the appellant had touched the vagina, penis, anus or breast of the child or made the child touch the vagina, penis, anus or breast etc. Whether any other act with sexual intent which involved physical contact without penetration, was committed by the appellant. Whether any other act with sexual intent which involved physical contact without penetration, was committed by the appellant. The 'physical contact' can be gathered, but whether that was the species of the contact that is required, cannot be found with certainty. But the appellant has introduced version labeling the allegation as retaliation. However, according to this court, this is a clear case of sexual harassment as defined under Section 11 of the POCSO Act as the appellant has with sexual intent made the gesture [an action performed to convey one's feeling or intention]. 20. Having observed thus, the conviction under Section 354B of the IPC and Section 8 of the POCSO Act is interfered with and set aside. But, from the evidence it has surfaced that the appellant has committed harassment upon the victim-child with sexual intent and thus he is liable to be convicted under Section 11 of the POCSO Act and for that no formal charge is required to be made in view of the section 222 of the Cr.P.C., 1973 as the offence as defined under Section 11 is a lesser offence, cognate to the offence punishable under Sections 7/8 of the POCSO Act. Accordingly, it is ordered. 21. The appellant being convicted under Section 11 of the POCSO Act, shall suffer 1(one) year rigorous imprisonment with fine of Rs. 1,000 (rupees one thousand), in default of payment, he shall serve 1(one) month's simple imprisonment for commission of offence punishable under Section 12 of the POCSO Act, 2012. Hence, the appeal stands partly allowed. 22. The appellant shall surrender in the trial court to serve out the imprisonment and payment of fine. He shall appear in the trial court within a period of a month from the date of receipt of this order. 23. Send down the LCRs.