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2021 DIGILAW 24 (TRI)

Rakhal Sarkar v. State of Tripura

2021-02-26

ARINDAM LODH

body2021
JUDGMENT : Arindam Lodh, J. 1. Heard Mr. S. Lodh, learned Counsel for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the State-respondent. 2. This appeal arises out of the judgment and order of conviction and sentence dated 12.02.2020 in connection with case No. Special (POCSO) 48 of 2017 whereby and whereunder the learned Special Judge, West Tripura, Agartala had convicted the appellant for the offence punishable under Sections 451, 354 and 506 of the IPC and under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO) and, sentenced him to suffer R.I. for one year and to pay a fine of Rs. 5,000/- with default stipulation for commission of offence under section 451 IPC and further sentenced him to suffer R.I. for three years and to pay a fine of Rs. 20,000/- with default stipulation for commission of offence under Section 8 of the POCSO Act and, further sentenced the appellant to suffer R.I. for six months for commission of offence under section 506 IPC. 3. The prosecution case, as highlighted by the learned Special Judge, West Tripura, Agartala is reproduced here-under: "The victim (name withheld) was a student of class-VII in the year 2016. The victim used to call the accused Rakhal Sarkar as ' Jethu' (senior uncle) being one of their neighbours. She used to go to her school as well as to the house of her private tutor taking the road in front of the house of accused. The accused used to call the victim to his house showing love and affection towards the victim used to touch her body and chest. Initially, out of shame the victim did not raise any objection but subsequently on 25.08.2016 when the accused taking the victim to his house, touched her private part the victim forcefully removed the hands of accused and on returning to the house narrated the incidents to her mother. Out of shame and on thinking about future of the victim matter was not disclosed to any other person. On 28.09.2016 around 5.45 p.m. the victim returned to their house from her school when her mother went to toilet. Father of the victim was at his shop at Madhab Bari. Out of shame and on thinking about future of the victim matter was not disclosed to any other person. On 28.09.2016 around 5.45 p.m. the victim returned to their house from her school when her mother went to toilet. Father of the victim was at his shop at Madhab Bari. Taking the advantage of loneliness of the victim, the accused entered their dwelling house and embraced the victim from back side with ill motive and also tried to put off her wearing pant. The victim, therefore, raised alarm and on hearing her alarm her mother rushed back to their dwelling home and caught the accused but, the accused managed to flee away pushing the mother of the victim to the ground. While escaping the accused threatened them not to inform such incident to anybody otherwise he would driven them out from the locality. Out of fear, the matter was not disclosed. Taking this opportunity the accused used to loiter around their house and also used to threat them. Finding no alternative mother of the victim informed the matter to local Panchayat headman (Pradhan) and the Panchayat member who advised the mother of the victim to seek redress in the police station. The headmen of the police station could not detain the accused being fled away. Lastly, on 25.08.2017 accused again came to the house of the victim and threatened her mother saying that he would see how the marriage of victim would solemnize". 4. The Officer-in-Charge of the police station on the basis of the aforesaid complaint registered Ranirbazaar PS case No. 2017 RNB 037, dated 12.09.2017 under Sections 341/448/354B/506 of the IPC and under Section 8 of the POCSO Act. The incident was investigated by S.I. Chandra Debbarma, here-in-after referred to as the I.O. In course of investigation, the I.O. visited the place of occurrence, prepared the hand sketch map, recorded statement of the available witnesses and arranged for recording of the statement of the victim girl under Section 164(5) of C.P.C.. The I.O. also seized the birth certificate of the victim by preparing seizure list. Having found a prima facie case, as was established, the I.O. submitted charge sheet on 18.10.2017 under Sections 341/448/354(b)/506 IPC and under Section 8 of the POCSO Act against the accused-appellant. 5. The I.O. also seized the birth certificate of the victim by preparing seizure list. Having found a prima facie case, as was established, the I.O. submitted charge sheet on 18.10.2017 under Sections 341/448/354(b)/506 IPC and under Section 8 of the POCSO Act against the accused-appellant. 5. On receipt of the charge-sheet, cognizance of the offence punishable under Sections 341/448/354(b)/506 of the IPC and under Section 8 of the POCSO Act was taken. Upon hearing the parties, charge was framed by the learned trial court, which needs to be reproduced here-under: "Firstly, that on 28.09.2016 at about 4.45 p.m. or so, you committed house trespass in the house of Sri Paritosh Debnath at South Majlishpur (near Truck Terminal), P.S. Ranir Bazar in order to commit an offence punishable with imprisonment and that you thereby committed an offence punishable under Section 451 of the Indian Penal Code and within the cognizance of this Court. Secondly, that you since March, 2016 on different occasions including the date 25.08.2016 at any time in your house situated at South Majlishpur, P.S. Ranir Bazar and also on 28.09.2016 at about 4.45 p.m. in the house of Sri Paritosh Debnath in the same village and also on another date in between 25.08.2016 to 28.09.2016 in the house of Sri Paritosh Debnath used criminal force/assaulted Smt. Purnima Debnath intending to outrage or knowing it to be likely that you will thereby outrage her modesty and that you thereby committed an offence punishable under Section 354 of the Indian Penal Code and within the cognizance of this Court. Thirdly or alternative, that on the above said date, time and place under second charge, you committed sexual assault upon Smt. Purnima Debnath, a child, by touching her breast, vagina and other parts of the body and that you thereby committed an offence of sexual assault punishable under Section 8 of the Protection of Children from Sexual Offences Act and within the cognizance of this Court. Fourthly, that on 25.08.2016 in your house at South Majlishpur, you threatened Smt. Purnima Debnath to killer if she disclose the incident of sexual assault upon her and that you thereby committed an offence punishable under Section 506 of the Indian Penal Code and within the cognizance of this Court. And I hereby direct that you be tried on the said charges by this Court". 6. And I hereby direct that you be tried on the said charges by this Court". 6. In order to prove the charge, the prosecution examined as many as 12 witnesses. At the closure of recording evidences, the learned trial court examined the accused, Rakhal Sarkar, under Section 313 Cr.P.C., wherein he was noticed about the incriminating statements and materials, as surfaced by the prosecution witnesses against him in course of trial to which the accused denied all the allegations levelled against him. However, he denied to adduce any evidence on his behalf. Thereafter, having heard the learned counsel appearing for the parties and on consideration of the evidences on record, the learned trial court returned the finding of guilt against the accused person and convicted and sentenced him, as aforestated. 7. Being aggrieved and dissatisfied with the said judgment and order of conviction and sentence, the appellant had preferred the instant appeal before this court challenging the legality and propriety of his conviction and sentence. 8. The learned Special Judge, at the time of deciding the case formulated the following points for determination of the guilt of the accused: "(i) Had the accused on the alleged date, time and place committed house trespass by entering into the house of the father of the victim with intent to outrage modesty of the victim and/or to assault the victim sexually? (ii) Had the accused on the alleged date, time and place used criminal force to the victim with intent to outrage her modesty? (iii) Had the accused on the alleged date, time and place committed criminal intimidation by threatening the informant to cause her death?" 9. This court also would like to proceed with the present appeal on the basis of the above formulated points for determination, by way of re-appreciating and re-evaluation of the evidences and materials, as narrated here-in-above. 10. Mr. Lodh, learned counsel appearing for the appellant has argued that the prosecution has miserably failed to establish the date, time and place of commission of offence, as alleged, by the prosecution witnesses no. 1, 2 and 3 i.e. mother-informant, victim and father of the victim respectively. Mr. Lodh, learned counsel has drawn my attention to the complaint lodged by the informant, the mother of the victim accordingly. 11. 1, 2 and 3 i.e. mother-informant, victim and father of the victim respectively. Mr. Lodh, learned counsel has drawn my attention to the complaint lodged by the informant, the mother of the victim accordingly. 11. I have gone through the complaint wherein, it is, inter alia, stated that her daughter while studying in class VIII and while going to school and while returning from school, the accused-appellant used to disturb her frequently and also used to call her daughter to his house where he used to touch her body and chest/breast. According to her, the incident was started from the middle of the month of March, 2016. Initially, her daughter did not disclose anything out of shame but, one day on 25.08.2016 the accused-appellant touched her breast calling her daughter in his house from where her daughter somehow managed to flee away from the clutches of the accused-appellant. The incident was narrated to her by her daughter but, they did not inform the matter to any person considering the future of her daughter but, on 28.09.2016 at about 4.45 pm, her daughter returned from school when she was in bathroom and her husband was in the shop at Madhabbari chowmuhani. At that time, the accused-appellant who was hiding and waiting had entered into their room thinking that they were not in the house and had grasped her daughter from behind with an ill motive and had tried to remove her panty forcefully. After hearing the cry of her daughter, she immediately rushed out of the bathroom and caught the accused-appellant red-handed when she also started to raise alarm but, the accused-appellant pushed her down on the ground and fled away from the scene of occurrence. She further stated in the complaint that while fleeing away, the accused-appellant threatened not to disclose the said incident to anybody. The incident was informed to Pradhan and members of the Gram Panchayat who advised them to take shelter of police. 12. Mr. Lodh, learned counsel, then, took me to the deposition of the informant who deposed before the court as PW-1. She deposed that on 23.02.2016 at about 5/5.30., the accused Rakhal Sarkar entered her hut and touched different portion of the body of her daughter including her breast. 12. Mr. Lodh, learned counsel, then, took me to the deposition of the informant who deposed before the court as PW-1. She deposed that on 23.02.2016 at about 5/5.30., the accused Rakhal Sarkar entered her hut and touched different portion of the body of her daughter including her breast. She further deposed that the accused removed the panty of her daughter and touched her vagina and at that time she was in the bathroom and her husband was out of room. She rushed to the room and found some portion of the frock of her daughter was being torn and her panty was removed. She also found Rakhal Sarkar, the accused in the room and then detained him. However, Rakhal Sarkar, the accused fled away threatening them not to disclose the matter to anybody. She further deposed that she called her husband over phone and, accordingly, he returned home after about 10 minutes but, they did not inform the incident to any of their villagers. So, here this court finds that in the complaint she did not state anything regarding any incident that occurred on 23.02.2016 at about 5/5.30 pm. 13. During her deposition she continued to depose that after 3/4 days there from, again the accused one day at about 5/5.30 pm came to her house and taking advantage of herself and her husband, embraced her daughter and laid her on the cot and touched different portion of her body. About 10-15 minutes thereafter she returned to her house when her daughter narrated the incident to her. Then, the matter was informed to Pradhan and members of their area, namely, Uttam Debnath and Ranjit Debnath and they expressed their inability to solve the problem and instructed her to take shelter of law. Accordingly, she lodged the complaint which was registered as FIR, as aforestated. 14. If, I pause her, I find she deposed that another incident had taken place after 3/4 days of 23.02.2016, which prompted her to move to the Pradhan and members of Panchayat, but, in the complaint, this fact was completely found to be absent. Accordingly, she lodged the complaint which was registered as FIR, as aforestated. 14. If, I pause her, I find she deposed that another incident had taken place after 3/4 days of 23.02.2016, which prompted her to move to the Pradhan and members of Panchayat, but, in the complaint, this fact was completely found to be absent. If the first incident occurred on 23.02.2016 and if the second incident occurred after 3/4 days therefrom, then it would mean that the second incident had taken place on 27th or 28th February, 2016 or on 1st March, 2016 but, I find that the first date of the incident was mentioned as 25.08.2016 and the second incident on 28.09.2016. 15. It is true, that FIR is not a substantive piece of evidence, but, it can be used for contradiction and corroboration. Here from the deposition of PW-1, I find major discrepancies regarding the date of occurrence of the incident, as alleged by the informant. 16. Being confronted with the cross-examination, it is surfaced that PW-1, admitted that she did not mention in her FIR about the incident occurred on 23.02.2016 or regarding any incident that occurred after 3/4 days from 23.02.2016. From the trend of cross-examination, it is revealed that the defence has tried to make out a case that there was good relation between the husband of the informant (PW-1) and the accused. Even, the accused has arranged a private job for the husband of the informant. PW-1, further stated in her cross-examination that the accused helped them in purchasing one land at Majlishpur area. However, she denied that her husband took loan of Rs. 2,40,000/- from the accused to construct house at Majlishpur. It is also revealed from her cross-examination that on the western side of her house, houses of Saral Das, Sekhar Das and Gouranga Das were situated and they were living with their own families in their house. It is also revealed that the house of the Pradhan and members were situated at a distance of around 5-6 km. The defence also suggested that there was no bathroom and cot in her house, which was denied. 17. At this juncture, I have given a look to the hand sketch map prepared by the I.O. where there is no mention of bathroom in the place of occurrence, dwelling house. The defence also suggested that there was no bathroom and cot in her house, which was denied. 17. At this juncture, I have given a look to the hand sketch map prepared by the I.O. where there is no mention of bathroom in the place of occurrence, dwelling house. However, there is indication of kitchen room on the eastern side of the place of occurrence. However, the dwelling house of the neighbours is mentioned. Here, I was also looking for the seizure of articles in view of the statements of PW-1 that she found the frock of her daughter being torn, but, I find that no such frock was seized by the I.O. to substantiate the fact that the frock was torn by the accused when the accused entered into the room of the victim. It is also revealed that the victim girl was not medically examined. It is further revealed that both the victim girl as well as the informant had raised alarm but, strange enough, none of the neighbouring witnesses came forward immediately after the incident and the I.O. also never tried to examine the neighbouring witnesses whether they heard any such hue and cry on the part of the victim girl as well as the mother, informant. It becomes hard to digest that without informing the immediate neighbours, the informant and her husband went to the house of Pradhan and members whose houses were situated at a distance of 5-6 km. 18. Having kept these discrepancies in the deposition of PW-1, I have proceeded to examine the evidence of PW-2, the victim girl. The victim girl deposed before the court on 11.10.2018. She deposed that about one year ago from the month of March, the accused started disturbing her and allure her that he would give many things to her. She deposed that on 28.09.2017 while she was returning from school, the accused took her to his house and touched her breast and also touched her vagina after removing her panty. The accused also threatened her not to disclose the incident to anybody otherwise he would kill her. Thereafter, she deposed that after 3/4 days therefrom, one day in the afternoon at about 5.00 pm, the accused went to her house and hidden himself behind shutter of the door when her mother was in the bathroom. The accused also threatened her not to disclose the incident to anybody otherwise he would kill her. Thereafter, she deposed that after 3/4 days therefrom, one day in the afternoon at about 5.00 pm, the accused went to her house and hidden himself behind shutter of the door when her mother was in the bathroom. She further deposed that after completion of taking food, when she was washing her mouth and entered into her room thereafter the accused embraced her when she raised alarm. Her mother arrived at once when the accused fled away. She further deposed that she gave statement before the lady officer under Section 164 Cr.P.C. (Exhibit 3 series). 19. Being confronted with the cross-examination, she stated that she did not state to the lady officer (Magistrate) or to the police about the date of the incident occurred in the house of the accused on 28.09.2017. She also admitted in cross-examination that she did not state to the police about the incident that occurred after 3/4 days from 28.09.2017. In cross-examination, she admitted that the police did not seize any of her wearing apparels. 20. What transpires from her deposition that she did not state anything regarding any incident that allegedly occurred on 23.02.2016 at about 5/5.30 pm and after 3/4 days therefrom. What she has stated is for the incident which allegedly occurred on 28.09.2017 and after 3/4 days therefrom. Moreso, she has stated that the first incident occurred in the house of the accused when she was called by the accused while she was returning from her school. But, in contradiction, according to her mother-informant, the first incident relating to removing her panty and touching her vagina occurred on 23.02.2016 at about 5/5.30 pm when the accused entered into their house. 21. PW-3, the father of the victim deposed that he was informed by his wife (PW-1) that the accused used to disturb their daughter and on 28.09.2016 in the evening his wife found the accused in their house when he was scuffling with their daughter in their bed. He further deposed that on 29.09.2016, he informed the incident to the Gram Pradhan, Uttam Debnath and member, Ranjit Debnath when they advised him to take shelter of law. In cross-examination, PW-3 has admitted that the accused helped him in getting his job. He further deposed that on 29.09.2016, he informed the incident to the Gram Pradhan, Uttam Debnath and member, Ranjit Debnath when they advised him to take shelter of law. In cross-examination, PW-3 has admitted that the accused helped him in getting his job. Here, I find that PW-3, being the father does not support the version of his daughter (PW-2) that the incident occurred on 28.09.2017 in the house of the accused and that after 3/4 days therefrom i.e. from 28.09.2017. 22. Bearing in mind the deposition of PW1, 2 and 3, I have proceeded to have a look to the evidence of the Pradhan, Uttam Debnath and member, Ranjit Debnath, who deposed as PW-4 and PW-5 respectively in course of trial. PW-4, deposed that about 2 1/2 years ago one day Paritosh Debnath i.e. PW-3, father of the victim came to his house and informed him that "perhaps some quarrel had taken place between him and his one neighbor", but, the said witness could not remember the name of the neighbor. PW-4, also deposed that he had forgotten the exact complaint of Paritosh Debnath. PW-5, Ranjit Debnath also deposed in the same tune as that of PW-4 but, these two witnesses were not declared hostile by the prosecution. They are the only independent witnesses appeared in the instant case. 23. PW-7, Suman Rudra Paul also appears to be an independent witness, but, he also did not support the prosecution case and was declared hostile. PW-11, the Judicial Magistrate, confirmed the statement of the victim made under Section 164 Cr.P.C. 24. Now, on careful scrutiny of the evidence of PW-1, 2 and 3, I find that there are enough discrepancies in the statements of the victim, as well as the informant and PW-3, being father of the victim. Otherwise also, PW-3 is a hearsay witness. The informant, mother did not support the version of the victim and the victim also did not support the version of the informant. The independent witnesses, particularly PW4 and 5, did not corroborate the statements, neither of the victim nor of the informant. The I.O. did not seize any of the wearing apparels, particularly, the frock which was particularly claimed by PW-1 that it was being torn by the accused. The independent witnesses, particularly PW4 and 5, did not corroborate the statements, neither of the victim nor of the informant. The I.O. did not seize any of the wearing apparels, particularly, the frock which was particularly claimed by PW-1 that it was being torn by the accused. It leaves me with no other alternative, but, to draw an adverse inference against the version of the prosecution regarding the frock whether it was at all torn and, makes the prosecution story untrustworthy. 25. In the light of the above analysis of facts, according to me, the finding of guilt, as returned, by the learned Special Judge, cannot sustain. Accordingly, the judgment of conviction and order of sentence, as aforestated, imposed by the learned Special Judge upon the appellant, stands set aside and quashed. It is informed that the appellant is on bail. Accordingly, the appellant is discharged from the liability of his bail bond and the suretys also stands discharged. The convict-appellant is set at liberty. Send down the LCRs.