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2020 DIGILAW 115 (TRI)

Ramani Mohan Das v. State of Tripura

2020-10-01

ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. This is an appeal under Section 374 of CrPC against the judgment and order of conviction and sentence dated 10.06.2019, passed by the learned Sessions Judge, South Tripura Judicial District, Belonia in Case No. Special 17(POCSO) of 2017 whereby and whereunder the appellant has been convicted under Section 354 of IPC and sentenced him to suffer R.I. for 1 (one) year and to pay a fine of Rs. 10,000/- with default stipulation and further sentenced to suffer S.I. for another 15 (fifteen) days and to pay a fine of Rs. 500/- under Section 341 of IPC with default stipulation. 2. The prosecution case, in short, is that on 02.08.2017 at about 10:30 am the convict-appellant wrongfully restrained the victim girl on her way to school and forcibly put vermilion on her forehead. It is also alleged that the convict-appellant used to follow the victim with ill-motive while she used to go to school. 3. On receipt of the complaint, the Officer-in-Charge of P.R. Bari Police Station had registered an FIR bearing No. PR Bari P.S. Case No. 2017/PRB/054, under Sections 341/354 of IPC and Section 11(iv) of the Protection of Children From Sexual Offence Act, 2012 and endorsed the case to S.I. Bikram Das for investigation. 4. After being endorsed, the investigating officer started investigation, examined and recorded statements of the available witnesses, arranged for recording statement of the victim girl under Section 164(5) of CrPC by the concerned Magistrate and seized some documents including the birth certificate of the victim. Finally, after being prima facie satisfied with the offence committed by the convict appellant, the investigating officer submitted charge-sheet against the convict-appellant. 5. Having received the records, learned Special Judge framed charge against the accused person under Section 341/354/354A and Section 11(i)/11(iv) of POCSO Act, 2012 punishable under Section 12 of POCSO Act. 6. In course of trial, in order to substantiate the charge, the prosecution examined as many as 10 witnesses and relevant documents as introduced were taken into evidence with Exhibit markings. 7. After conclusion of recording evidence the accused was examined under Section 313 of CrPC to which he denied all the incriminating materials as surfaced against him by the prosecution witnesses and pleaded his innocence. However, he denied to adduce any evidence on his defence. 8. 7. After conclusion of recording evidence the accused was examined under Section 313 of CrPC to which he denied all the incriminating materials as surfaced against him by the prosecution witnesses and pleaded his innocence. However, he denied to adduce any evidence on his defence. 8. Having heard the arguments as advanced by the learned counsel appearing for the parties, as well as after perusal of the records, the learned Special Judge declared the judgment of conviction and sentence against the accused-appellant as aforestated. 9. Being aggrieved by and dis-satisfied with the impugned judgment and order of conviction and sentence, the convict has preferred the instant appeal. 10. Heard Ms. Kathakali Roy Barman, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Addl. Public Prosecutor appearing for the State-respondent. 11. Ms. Kathakali Roy Barman, learned counsel for the appellant has submitted that there were some contradictions in the statements made by the witnesses in their respective depositions. She further submitted that there was no eyewitness to the incident, though, the incident had occurred at broad daylight, and while the victim girl was going to school there were so many students and many others, but, none came forward to substantiate the charge levelled against the accused. 12. On the other hand, Mr. Ghosh, Learned Addl. P.P. has submitted that the case is well-proved. The convict-appellant put vermilion on the forehead of the victim girl. There is overwhelming evidence that the convict-appellant was always disturbing the victim girl and one day put vermilion without her consent. Mr. Ghosh, learned Addl. P.P. has further submitted that there is no room to doubt the testimony of the victim girl that the convict-appellant forcibly put vermillion over her forehead. After hearing the submissions of the learned Addl. P.P. and while interacting with the Court, Ms. Roy Barman, learned counsel for the appellant has submitted that the convict-appellant is aged about 26 years and he never committed any such offence. Furthermore, there was no single instance that the convict-appellant had further disturbed the victim girl and others after the said incident. 13. I have heard and considered the submissions of the learned counsel appearing for the parties. Furthermore, there was no single instance that the convict-appellant had further disturbed the victim girl and others after the said incident. 13. I have heard and considered the submissions of the learned counsel appearing for the parties. After perusal of the testimony of the victim girl as PW-6, where she categorically deposed that on 02.08.2017, at around 10:30 am, while she was proceeding towards school, the convict-appellant restrained her on the road and put vermilion on her forehead. She raised alarm and on hearing her alarm Jayanta Das, Litan Das and Sujit Das arrived at the place of occurrence when the accused fled away. She informed the matter to her mother and her mother informed the incident to her father and uncle. Though Litan Das and Sujit Das were examined by the prosecution, but, they were declared hostile. Further, there are other material witnesses like PW-3, PW-2, PW-5, PW-8, PW-9 and PW-10. 14. PW-1 is the uncle of the victim girl and he has corroborated the statements of PW-6, the victim girl. It is also evident from the evidence of PW-2, Smt. Jyoti Sarkar, PW-3, Smt. Usha Rani Roy and PW-5, Sri Biman Das that the accused used to disturb the victim girl. I find there is no material contradiction or discrepancy to doubt the statements of the victim girl. The victim girl also did not deviate from her earlier statement recorded under Section 164(5) of CrPC. In my opinion, the material part of the allegation that the accused put vermilion forcibly over the forehead of the victim girl has been proved beyond reasonable doubt and thus, the judgment of conviction and sentence as returned by the learned trial Judge cannot be said to be unsustainable and illegal; thereby, do not call for interference. 15. However, I have considered the age of the convict appellant. At this young age that was his first offence. There is no evidence that he had committed any offence prior to the present offence. There is no evidence on record that after commission of the present offence, the convict had committed any offence punishable under the Penal Code or any other Act The convict-appellant was released on bail after his arrest. There is no evidence that he misused or abused the benefit of bail granted in favour of him by the Court and repeated the said act. There is no evidence that he misused or abused the benefit of bail granted in favour of him by the Court and repeated the said act. In my view, an offender having such antecedents may be absolved from suffering sentence putting him into jail, and be considered for releasing him on probation of good behaviour keeping in view the object and spirit of Section 360 of the Code of Criminal Procedure and Section 3 and 4 of Probation of Offenders Act, 1958. 16. The Apex Court in Jugal Kishore Prasad Vs. State of Bihar, (1972) 2 SCC 633 explained the rationale of the provision as to prevent the conversion of youthful offenders into obdurate criminals and observed thus: "6. The Probation of Offenders Act was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that good many crimes are the product of socioeconomic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore provided that youthful offenders should not be sent to jail, except in certain circumstances. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of section 6 of the Act." 17. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of section 6 of the Act." 17. Sub-section (10) of Section 360 of CrPC specifically contemplates that the provisions of the Probation of Offenders Act, 1958, or the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders are not affected by the Code. Therefore, the provisions of the Code were not excluded by the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act, are applicable in respect of the offenders before the Court. 18. The Apex Court in Lakhanlal Vs. State of M.P., 2019 (3) Crimes 95(SC) held that- "16. The conjoint reading of the provisions of both the statutes, we find that the provisions of Section 360 of the Code are in addition to the provisions of the 1958 Act or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." 19. In Lakhanlal (supra), the Apex Court has further held that- "7. Section 360(1) of the Code contemplates as to which offenders are entitled to the benefit of probation and on what conditions. It contemplates that firstly, if any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less; and secondly, when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, is entitled to the benefit of probation. Both categories of offenders have to further satisfy that he is not a previous convict; satisfaction of the Court having regard to the age, character or antecedents of the offender and to the circumstances in which the offence was committed. Both categories of offenders have to further satisfy that he is not a previous convict; satisfaction of the Court having regard to the age, character or antecedents of the offender and to the circumstances in which the offence was committed. The Court being satisfied can order, instead of sentencing him at once to any punishment, that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) and in the meantime to keep the peace and be of good behaviour." 20. As I said earlier, in the instant case, the offender, convict appellant herein, at the time of committing the crime of putting vermilion on the forehead of the victim girl was aged about 26 years. There is no history of his previous conviction or of bad behaviour or otherwise bad conduct towards others or possesses a character detrimental to society. I reiterate that he did not commit any such crime punishable under Indian Penal Code or any other Act or Acts. In this situation, in my opinion, there cannot be any impediment under Section 360 of CrPC to release the offender on probation of good behaviour if he attains the age of less than 21 years or more than 21 years. In the instant case, no doubt, the nature of the acts as committed by the convict-appellant leads me to draw an impression that he was under the influence of youthful fantasies which led him to commit the crime of putting vermilion on the forehead of the victim girl without thinking of its penal consequence. 21. Considering his young age and keeping in view the object of introducing of Probation of Offenders Act read with Section 360 of CrPC, I am inclined to extend the benefits of relevant provisions of law to release the convict-appellant on probation of good behaviour and conduct in exercise of power under Section 360 CrPC. 22. Accordingly, I grant the benefit of probation to the convict-appellant for committing offence under Section 341/354 of IPC. Therefore, in terms of Section 360, CrPC, it is ordered that the appellant be released on probation of good behaviour and conduct for a period of two years on furnishing a bond of Rs. 22. Accordingly, I grant the benefit of probation to the convict-appellant for committing offence under Section 341/354 of IPC. Therefore, in terms of Section 360, CrPC, it is ordered that the appellant be released on probation of good behaviour and conduct for a period of two years on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) with one surety of like amount before the learned Special Judge (POCSO), South Tripura Judicial District, Belonia within a period of one month from the date of receipt of the certified copy of the order by the appellant on condition that-(i) the appellant shall not misuse or abuse the benefit of his release on probation of good conduct; (ii) shall not disturb the victim girl or commit any offence punishable under any Statute or Act and (iii) shall not leave the jurisdiction of the Court without prior permission of the learned Special Judge (POCSO), South Tripura, Belonia within the said probation period. 23. However, the appellant is directed to pay a fine of Rs. 1000/- (Rupees one thousand) to the victim girl as compensation under Section 5 of the Probation of Offenders Act, 1958 within 3 (three) months from the date of receipt of certified/authenticated copy of this judgment, else, he is to remain on probation of good behaviour for further 1 (one) year. 24. The appeal stands disposed in the above terms. 25. Send down the L.C. records along with a copy of this judgment.