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2021 DIGILAW 94 (TRI)

Indrajit Ghosh v. State of Tripura

2021-07-09

S.G.CHATTOPADHYAY

body2021
JUDGMENT [1] Apprehending arrest in West Agartala P.S Case No.2020WAG206 under Sections 377/506 IPC and Section 5 read with Section 6 of the POCSO Act FIR named accused Indrajit Ghosh has filed this application under Section 438 of the Code of Criminal Procedure, 1973 (Cr. P.C hereunder) seeking release on pre arrest bail. [2] The background facts of the case are as under: The informant father of the victim (named withheld) lodged an FIR with the Officer-in-charge of the Ramnagar Police Outpost alleging, inter alia, that the accused who is a private tutor of his nine years old son committed sexual assault on his son by inserting his penis into the anus of his son. At the time of committing such offence the accused private tutor of his son gagged him so as to prevent him from shouting. After committing the offence the accused warned the son of the informant that in case the incidence was divulged by him to anybody, his parents would be killed and he would be handed over to police. After the occurrence symptoms of illness appeared. When his father asked him as to what happened to him, initially he was reluctant to say anything. Later, he told his mother that he was feeling pain in his anus. He was then taken to IGM Hospital for treatment on 18.11.2020 where he divulged the entire incidence and by seeing the injury doctors also confirmed the veracity of the said incidence. [3] Based on the said FIR of the father of the informant, West Agartala P.S case No.2020WAG206 dated 30.11.2020 under Sections 377 and 506 IPC and Section 5 read with Section 6 of the POCSO Act was registered and the case was taken up for investigation. [4] Apprehending arrest in the case the accused approached the Additional Sessions Judge (Court No.3) for pre arrest bail by filing an application under Section 438 Cr. P.C which was rejected by the learned Additional Sessions Judge by his order dated 09.12.2020 on merit. Thereafter, the accused moved similar application before this Court which was rejected by this Court vide order 26.02.2021. Accused has again moved similar application before this Court for his release on pre arrest bail. [5] Heard Mr. Bhaskar Deb, learned counsel appearing for the petitioner as well as Mr. Ratan Datta, learned Public Prosecutor representing the State. [6] Mr. Thereafter, the accused moved similar application before this Court which was rejected by this Court vide order 26.02.2021. Accused has again moved similar application before this Court for his release on pre arrest bail. [5] Heard Mr. Bhaskar Deb, learned counsel appearing for the petitioner as well as Mr. Ratan Datta, learned Public Prosecutor representing the State. [6] Mr. Bhaskar Deb, learned counsel appearing for the petitioner submits that accused has been falsely implicated in the case because he had once beaten his victim student for some wrongs committed by him. Thereafter, aggrieved parents lodged a false case against the petitioner. Further submission of Mr. Deb is that even though it was stated in the FIR that victim was suffering from pain in his rectum and he was taken to IGM hospital for treatment and the doctors confirmed the commission of the offence, there is no medical report to support this fact. According to Mr. Deb, learned counsel, the accused is a teacher by profession and his arrest and detention would thin his career and life. Learned counsel, therefore, urges the court for release of the accused on pre arrest bail. [7] Mr. Ratan Datta, learned P.P on the other hand vehemently opposes the bail application and submits that the statement of the victim recorded in Court Under Section 164(5) Cr.P.C demonstrates that victim was sexually assaulted by his accused teacher on several times. Mr. Datta, also refers to the police statements of the parents of the victim as well as some of the neighbours of the victim who has also supported such allegations. [8] Having referred to the statement of the Medical Officer who examined the victim at the hospital, Mr. Datta, submits that as stated by the Medical Officer, victim was taken to hospital 18 days after the occurrence and, as such, no injury could be detected in his rectum though there was pain in the said region of his body at that time. It is further argued by Mr. Datta that arrest and detention of the accused is necessary to unfold the crime and his release on bail at this stage would spoil the investigation. It is further argued by Mr. Datta that arrest and detention of the accused is necessary to unfold the crime and his release on bail at this stage would spoil the investigation. As noted, similar bail application of the accused was rejected by this Court vide order dated 26.02.2021 in AB No. 09 of 2021 observing as under: “[10] Having perused all these materials placed before this court, I find that the mother of the victim had supported her FIR statement in her statement recorded by IO under Section 161 Cr.P.C. It is stated that by her that her victim son was a school student who used to read in class III. The accused petitioner is a neighbor of her who was engaged by her for providing private tuition to her son. Her son used to visit the accused for tuition in his house for the last 3-4 months. All on a sudden she noticed that her son was feeling ill and he was also reluctant to go to his private tutor. When she wanted to know the reason, initially her son was hesitant in saying anything to his mother. Due to her insistence, he told her that when he used to visit his accused tutor (petitioner), initially he used to rub his genital organ on his annus. After few days, he started inserting his genital organ into his rectum as a result of which he was feeling pain in passing stool. Then his mother took him to IGM Hospital on 18.11.2020. She also stated that his son became very upset after the occurrence and after they came to know about the occurrence, the accused private tutor also left his home. Same statement has been given by her husband and one of the neighbours who came to know about the occurrence from the parents of the victim. The 9 years old victim has also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) Cr.P.C. About the medical evidence it is found that the IO has already approached the medical officer to record his findings in the medical report and such report is awaited. The 9 years old victim has also unfolded the entire incidence before the Judicial Magistrate who recorded his statement under Section 164(5) Cr.P.C. About the medical evidence it is found that the IO has already approached the medical officer to record his findings in the medical report and such report is awaited. [11] The materials available on record have made out a strong prima facie case against the accused petitioner and in view of the above, this court is of the view that this is not a fit case in which the accused may be given the benefit of custodial immunity by granting pre arrest bail under Section 438 Cr.P.C. Resultantly, his bail application stands rejected. Return the CD.” [9] Statement of victim, his parents and neighbours recorded by the police under Section 161 Cr. P.C and statement of the victim recorded in Court under Section 164(5) Cr. P.C have made out a strong prima facie case against the petitioner. [10] In view of the nature of the offence and facts and circumstances of the case, the accused if enlarged on bail would likely to influence the witnesses of the case which would impair the trial. Moreover, from the facts and circumstances of the case it cannot be said that custodial interrogation of the accused is not at all necessary. Therefore, it would not be appropriate to allow the bail of the accused at this stage. [11] Resultantly, his bail application stands rejected and the case is disposed of. Return the Case Diary.