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2022 DIGILAW 103 (TRI)

Dipankar Roy v. State of Tripura

2022-03-05

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. S. Bhattacharjee, learned counsel for the appellant as well as Mr. Ratan Datta, learned PP assisted by Mr. S. Debnath, learned Additional PP appearing for the State-respondent. 2. This appeal arises out of the judgment and order of conviction and sentence dated 28.11.2019 in connection with case No. Special (POCSO) 54 of 2016 whereby and whereunder the learned Special Judge, West Tripura, Agartala had convicted the appellant for the offence punishable under Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short POCSO) and, sentenced him to suffer R.I. for three year and to pay a fine of Rs. 50,000/- with default stipulation. 3. The mother of the victim girl, PW-2 (name withheld) had lodged a complaint with the Officer-in-Charge of Amtali police station, West Tripura on 20.05.2016 stating inter alia that two years back while her daughter was studying in class VII at Kendriya Vidyalaya, ONGC complex, Badharghat, Agartala, her minor daughter was subjected to sexual harassment by a teacher of the school. Her daughter did not disclose the said fact during those two years. Having noticed that her daughter was going unconscious sometimes, they visited some doctors at Agartala, and ultimately, she was referred to NIMHANS, Bangalore. It is alleged in the complaint that the doctor (PW-9) disclosed that her daughter was sexually harassed by one teacher of the school, which was disclosed to the doctor by her daughter herself. They came back to Agartala and lodged a complaint to the Principal of Kendriya Vidyalala, but, she was informed that the teacher was not in the school during that period of time as he was transferred to Chennai. Ultimately, she lodged the complaint with the Officer-in-Charge of Amtali police station. 4. The matter was investigated. After completion of investigation, charge sheet had been submitted. After receipt of the charge sheet, learned Special Judge framed charge against the accused, Dipankar Roy, under Section 354(A) IPC and under Sections 11(i)(iv)(v) of the POCSO Act, 2012, and thereby committed the offence punishable under Section 12 of the said Act, 2012. 5. In order to prove the charge, the prosecution examined as many as 10 witnesses. After receipt of the charge sheet, learned Special Judge framed charge against the accused, Dipankar Roy, under Section 354(A) IPC and under Sections 11(i)(iv)(v) of the POCSO Act, 2012, and thereby committed the offence punishable under Section 12 of the said Act, 2012. 5. In order to prove the charge, the prosecution examined as many as 10 witnesses. At the closure of recording evidences, the learned trial court examined the accused, Dipankar Roy, 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. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellant had preferred the instant appeal before this court. 6. Mr. Bhattacharjee, learned counsel appearing for the convict appellant has submitted that the entire prosecution story is baseless and outright false. The FIR has been lodged after two years of the incident which itself is enough to hold that the entire story was manufactured and concocted. Mr. Bhattacharjee, has tried to persuade this court that PW-1 and PW-6 being the parents of the victim deposed so many things in their chief-examinations which are found to be absent in their previous statements recorded under Section 161 Cr.P.C. Mr. Bhattacharjee, learned counsel has further argued that it is unbelievable that a student of class VII, suffering from serious mental trauma, as alleged, did not disclose or divulge such incident to any of her classmates or to her parents. The investigating officer did not examine the doctor (PW-9), who according to the prosecution had disclosed the parents that the victim-daughter of PW-1 and PW-6 had disclosed to him that she was sexually abused by the accused. Mr. Bhattacharjee, also has submitted that the accused-appellant deserves to be acquitted. 7. The investigating officer did not examine the doctor (PW-9), who according to the prosecution had disclosed the parents that the victim-daughter of PW-1 and PW-6 had disclosed to him that she was sexually abused by the accused. Mr. Bhattacharjee, also has submitted that the accused-appellant deserves to be acquitted. 7. Per contra, learned PP assisted by Additional PP have tried to persuade this court that though the FIR was lodged after two years of the date of incident, but, considering the circumstances of the case and the relation between the victim girl and the accused being a student and teacher, such delay cannot be said to be unnatural. According to him, a student may not divulge that she is sexually abused, if it is, by her teacher. Learned PP has given much importance to the evidence of PW-9, the doctor, who being a psychiatrist had detected the problems, the victim girl was suffering from. Both the learned counsels appearing for the respondent-State have defended the judgment of conviction and sentence passed by the learned Special Judge. 8. On the basis of the aforesaid submissions, I have gone through the judgment of the learned Special Judge. I have perused the findings arrived at by the learned Special Judge convicting the accused-appellant. 9. Firstly, I have perused the evidence of PW-2, the victim girl. She has deposed that she was not good in mathematics and her math teacher used to behave with her improperly. She has deposed that the teacher had given her marriage proposal when she was reading in class VII and on many occasions the accused had forced her to open the buttons of her shirt and one day when she was in a queue for checking the math exercise book, the accused had touched her chest. She has also deposed that, one day her mother visited the school for submitting application for leave and at that time the accused getting her mother lodged complaint against her that she did not maintain discipline in the school and her mother also believed him and at home her mother had scolded her. She further deposed that due to the misbehaivour of her math teacher she was not well and for that purpose, her mother took her to various doctors including GB hospital for her treatment. At last they visited NIMHANS, Bangalore. She further deposed that due to the misbehaivour of her math teacher she was not well and for that purpose, her mother took her to various doctors including GB hospital for her treatment. At last they visited NIMHANS, Bangalore. Being confronted with cross-examination, the victim girl stated that in a queue they used to check their math exercise books and other students were also in the same queue. She obtained Grade 'B-2' in class VII in math subject. Grading 'B-2' means that she obtained the marks within the range of 61 to 70. She further stated in cross-examination that in the month of October, 2017, they went to Chennai and for that purpose, permission was taken from the school. She also stated that Nikita was her best friend and they used to sit in a common bench side by side in her class. She further stated that in the month of October, 2014, they went to Chennai for tour and treatment purpose and at that time, she was given treatment by doctor of Chennai and she did not disclose anything about the behaivour of math teacher to the doctor of Chennai and also did not tell her parents at that time. When her attention was drawn to her previous statements, she stated that she did not state to the I.O. or the Magistrate that the accused used to take her in the last bench and touched her hair and on many occasions he forced her to open the button of her shirt and that she was not willing to open the button of her shirt, he then used to make pinch on her hand and one day her mother visited school for submitting application for leave and at that time the math teacher getting her mother lodged complaint against her that she was indisciplined in the school and her mother also believed that, and rebuked her, and in the month of April, 2016 they went to Bangalore to visit NIMHANS. She also did not state to the I.O. or the Magistrate that even after she left the school, the math teacher sometime used to wait in the school gate and whenever she get down from the auto at school gate, he used to show her his red eyes. 10. Thereafter, I have perused the evidence of PW-1 and PW-6, the mother and the father of the victim respectively. 10. Thereafter, I have perused the evidence of PW-1 and PW-6, the mother and the father of the victim respectively. The mother, PW-1 had lodged the complaint. I have seen that what PW-1 had deposed during her chief-examination were substantially not found in her previous statements she made before the I.O. Similar is the case in regard to the evidence of PW-6. There are lots of exaggerations and improvements in their versions. PW-9 is the doctor. He has stated that he had not written the prescription. He was not examined by the I.O., but, he appeared in the witness box. The doctor had written the history of the patient which was marked as Exbt. 8. Exbt. 8 only reveals that the victim had suffered "unpleasant experience in the school". PW-9 further deposed that the victim girl was advised to review for examining the progress of her treatment, but, she did not visit. 11. I have given my thoughtful consideration to the evidences and materials brought on record. In my opinion, the story as tried to be projected by the prosecution cannot inspire the confidence of this court. Firstly, the victim being a student of class VII was in a position to understand what the accused had done with her, and if any unnatural behaivour was noticed by her, then, she must have told, atleast, this to her mother (PW-1), but, she never told to her mother about any kind of behaivour, least to say, the sexual harassment upon her by the accused. She also never disclosed this fact of sexual harassment to any of her classmates though she told in her evidence that Nikita was her best friend and they used to sit together in a two seater bench. 12. Noticeably, in her cross-examination, the victim has stated that everytime when the math exercise book is being checked by the teacher, all the students used to be in the same queue and one after another the teacher used to check the math book. In this situation, it is hard to believe that a teacher will touch the chest of a girl when she was in a queue, as she deposed in her chief examination. The prosecution has failed to produce any such student who has noticed such incident by the accused towards the victim-girl. Exbt. 8 only reveals that the victim girl suffered "unpleasant behaivour in the school". 13. The prosecution has failed to produce any such student who has noticed such incident by the accused towards the victim-girl. Exbt. 8 only reveals that the victim girl suffered "unpleasant behaivour in the school". 13. On overall analysis of the evidences of the prosecution witnesses, particularly, PW-1, PW-2, PW-6 and PW-9, in the opinion of this court, none of the prosecution witnesses are found to be trustworthy and credible. I reiterate that there are lots of improvements and exaggerations and I really doubt whether the victim girl was at all sexually abused by the accused. It might be she was scolded by the teacher for obtaining poor marks. 14. In the light of the above, the judgment of conviction and sentence, as passed by the learned Special Judge need to be interfered with and it is interfered. Accordingly, the judgment or conviction and sentence is set aside and quashed. The accused-appellant, namely, Dipankar Roy is acquitted from the charges levelled against him. It is informed that the appellant is on bail. Accordingly, the appellant is discharged from the liability of his bail bond and the surety(s) also stands discharged. The convict-appellant is set at liberty. Send down the LCRs.