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Tripura High Court · body

2021 DIGILAW 217 (TRI)

Subal Bhowmik v. State of Tripura

2021-12-21

A.LODH

body2021
JUDGMENT AND ORDER (ORAL) 1. This appeal is directed against the judgment and order of conviction and sentence dated 05.07.2019, passed by learned Special Judge, khowai District, Khowai, in connection with case No. Special (POCSO) 08 of 2015 whereby and whereunder the convict-appellant has been convicted under Section 8 of Protection of Children from Sexual Offences (POCSO) Act and sentenced him to suffer R.I. for 3 (three) years along with a fine of Rs.5,000/- with default stipulation. 2. Short facts of the case are that one Rakhi Das, lodged a written complaint before the Officer-in-Charge, Teliamura Police Station stating inter alia that on 08.09.2014, at about 12:30 hours, her minor daughter [name withheld], aged about 10 years, went out a little distance from their house for letting their goats. At that time, Subal Bhowmik, the accused- appellant [here-in-after referred to as the accused] on getting her minor daughter alone grabbed her arms and tried to remove her wearing pant and also pressed her breast. Her minor daughter started to cry loudly and when the complainant moved forward upon hearing cry of her minor daughter, the accused had fled away. 3. On the basis of the said complaint, O.C., Teliamura P.S. had registered an FIR. Investigation was carried on. During investigation, the investigating officer recorded the statements of the victim girl under Section 164(5) of CrPC. The I.O. also recorded the statements of the available witnesses. Thereafter, on being satisfied with the allegations, I.O. submitted charge-sheet against the accused. 4. Learned Special Judge after receipt of the copy of the police report, took cognizance of the same. At the commencement of trial, charge was framed against the accused under Section 8 of the POCSO Act. It was read over to the accused to which he pleaded not guilty. 5. To substantiate the said charge, the prosecution had introduced as many as 13 witnesses. The prosecution also introduced some documents including the birth certificate [Exbt.6] of the victim girl. 6. After conclusion of trial, the accused was examined under Section 313 CrPC to which he denied all the allegations levelled against him and also adduced two defence witnesses as DW-1 and DW-2. 7. The prosecution also introduced some documents including the birth certificate [Exbt.6] of the victim girl. 6. After conclusion of trial, the accused was examined under Section 313 CrPC to which he denied all the allegations levelled against him and also adduced two defence witnesses as DW-1 and DW-2. 7. Having heard the learned counsels appearing for the parties and on consideration of the evidence and materials on record, learned Special Judge held the accused guilty of committing offence punishable under Section 8 of the POCSO Act and sentenced him as aforestated. 8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellant has preferred the instant appeal before this court. 9. I have heard Mrs. S. Chakraborty, learned counsel appearing on behalf of the appellant. Also heard Mr. S. Ghosh learned Addl. P.P. appearing on behalf of the State-respondent. 10. Mrs. S. Chakraborty, learned counsel appearing for the appellant submits that the age of the victim girl has not been proved. The mother of the victim deposed that her victim daughter was born at IGM hospital but the certificate issued by the village panchayat reveals that she was born at Maharanipur. Moreover, according to learned counsel for the appellant, there is no explanation as to why delay of one day was caused in lodging the FIR. Mrs. Chakraborty, learned counsel further submits that the learned Special Judge ought to have acquitted the accused since the age of the victim girl has not been proved and conviction under Section 8 of the POCSO Act is not at all maintainable. 11. On the other hand, Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent submits that the prosecution has been able to establish the case beyond reasonable doubt. The age of the victim girl has been proved on the basis of record. The Block Development Officer, Krishanu De [PW-12] himself appeared before the court along with the Register of births and deaths and he proved the date of birth of the victim girl after comparing the same with the said Register. 12. Having considered the aforesaid submissions of the learned counsels of the parties, I have also perused the evidence of the prosecution witnesses and the evidence of DW-1 and DW-2. 13. 12. Having considered the aforesaid submissions of the learned counsels of the parties, I have also perused the evidence of the prosecution witnesses and the evidence of DW-1 and DW-2. 13. PW-1, the victim girl in her evidence deposed that on the fateful day at about 12:30 hours, she went to a Teak garden for letting their goats. At that time, the accused also went to that place followed by her and instructed her to fasten the goats in a tree in the jungle. While she was fastening the goats with a rope, the accused caught hold of her from her back side and forced to lie her down on the earth and started pressing her chest. PW-1 further deposed that when the accused tried to disrobe her, at that time, she raised alarm and after hearing alarm her mother rushed to the place when the accused had fled away. Her mother had seen Subal Bhowmik fleeing away from the place of occurrence. She confirmed her statements [Exbt.1] recorded under Section 164(5) of CrPC where she put her signature [Exbt.1/1]. Nothing material could be elicited from her cross-examination. 14. The mother of the victim girl deposed as PW-2. She wholly corroborated the statements which she stated in the FIR as well the statements made by PW-1. 15. Next vital witness is Krishanu De, the B.D.O. who deposed as PW-12. He deposed that he was posted as BDO of Teliamura RD Block. The birth certificate of the victim was registered on 08.04.2005 and the same was issued from BDO, Teliamura RD Block on 29.04.2005. The birth certificate bears the signature of Registrar of Laxmipur Gram Panchayat and the counter signature of Additional District Registrar of Birth and Death for Teliamura RD Block. PW-12 further deposed that as per existing rules of birth and death registration, the issuing officer is the Registrar and the certificate is countersigned by the Addl. District Registrar. He confirmed the birth certificate [Exbt.6]. He deposed that he also brought the Register where the date of birth of victim girl was recorded. Nothing material could be elicited to controvert the deposition of PW-12. 16. The accused had produced two witnesses, namely, Sri Tapas Sinha as DW-1 and Sri Haripada Biswas as DW-2. District Registrar. He confirmed the birth certificate [Exbt.6]. He deposed that he also brought the Register where the date of birth of victim girl was recorded. Nothing material could be elicited to controvert the deposition of PW-12. 16. The accused had produced two witnesses, namely, Sri Tapas Sinha as DW-1 and Sri Haripada Biswas as DW-2. DW-1 deposed that on 11-09-2014 wife of Subal visited his shop premises and informed him that a case was lodged by the complainant stating that on 08.09.2014 Subal embraced a minor girl and in reply DW-1 told her that on that day Subal was in his business premises. 17. DW-2 also deposed in the similar tune. 18. It is seen that the wife of the accused was shown as a prosecution witness. She deposed as PW-8, but, during her deposition it was found that she was deviating from her previous statements. As such she was declared hostile by the prosecution. 19. On overall consideration of the evidence on record, I find that the victim girl and her mother were all along consistent to the statements that on the fateful date and time, the victim girl went to tie up their goats. At that time, the accused was following her. When the victim girl had arrived at the Teak garden, the accused told her to fasten the goat with a tree. While she was fastening the goats with a rope, the accused embraced her from her back side and also tried to disrobe her by falling her down on the earth. She raised alarm, her mother had rushed to the spot. The accused had fled away and while fleeing away her mother [PW-1] had noticed him. I find no discrepancies in the statements of the victim girl and the mother, PW-2 as well. The age of the victim girl has been proved beyond reasonable doubt. The date of birth of the victim girl was recorded both in the birth register as well as in the panchayat register as on 27.03.2005. In view of this, I cannot agree with the submission of learned counsel appearing on behalf of the appellant that the age of the victim girl has not been proved by the prosecution. 20. In the result, the appeal fails and thus dismissed. In view of this, I cannot agree with the submission of learned counsel appearing on behalf of the appellant that the age of the victim girl has not been proved by the prosecution. 20. In the result, the appeal fails and thus dismissed. The judgment and order of conviction and sentence dated 05.07.2019, passed by learned Special Judge, khowai District, Khowai, in connection with case No. Special (POCSO) 08 of 2015 stands affirmed and upheld. 21. It is informed that the appellant Subal Bhowmik is on bail. His bail bond is cancelled. He is directed to surrender before the learned court below within a period of two weeks from today. It is made clear that if he fails to surrender, learned Special Judge, Khowai District, Khowai shall ensure his appearance in accordance with law to serve the remaining period of sentence. Needless to say, the period of imprisonment he suffered after his arrest or during trial shall be set off. Send back the LCRs forthwith.