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2022 DIGILAW 137 (TRI)

Arun Tripura v. State of Tripura

2022-03-16

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This appeal has been directed under Section 374 of CrPC against the judgment and order of conviction and sentence dated 04.03.2020, passed in Case No. Special 9 (POCSO) of 2018 whereby and whereunder the learned Special Judge, South Tripura, Belonia has convicted the appellant under Section 17 of POCSO Act read with Section 6 of POCSO Act and sentenced him to suffer R.I. for 10 (ten) years and to pay a fine of Rs. 10,000/- (Rupees ten thousand) for the said offence, in default to payment of fine, the appellant shall suffer further R.I. for 6 (six) months. The appellant is further convicted under Section 368 of IPC and sentenced him to suffer R.I. for 7 (seven) years and to pay a fine of Rs. 5,000/- (Rupees five thousand) for the said offence, in default to payment of fine, the appellant shall suffer further R.I. for 3(three) months. 2. Brief facts of the prosecution case is that one Bishnu Kumar Tripura lodged a written complaint on 21.12.2017 to the O.C., Manubankul Police Outpost stating inter alia that her daughter (name kept withheld), aged about 15 years, was kidnapped by one Barun Tripura who is also the brother of the present accused-appellant, namely, Arun Tripura. The allegation was that on 16.12.2017, at about 6:00 pm, Barun Tripura kidnapped the minor girl of the complainant out of love affairs from Ruhidas Para, Bishnupur area with a motorbike and took her to Twiruma under Kowifung Gaon Panchayat under Baikhora P.S. and kept her in the house of one of his friends namely, Karnaram Tripura, introducing to be his wife. Since 16.12.2017 to 19.12.2017, he committed rape upon the victim with an assurance to marry her. On 20.12.2017, the said Barun Tripura shifted the victim from Twiruma to Laxmichhara in the house of his elder brother Arun Tripura i.e. the appellant herein and kept her there for a night. There also Barun Tripura committed rape upon the victim in the same manner. After satisfaction of sexual lust on 21.12.2017, the principal accused Barun Tripura came to drop the victim girl to her own house situated at Bishnupur and at that time, the informant along with other local people detained the accused Barun Tripura at Bagmara area and handed over the Manubankul Outpost with an ejahar. 3. After satisfaction of sexual lust on 21.12.2017, the principal accused Barun Tripura came to drop the victim girl to her own house situated at Bishnupur and at that time, the informant along with other local people detained the accused Barun Tripura at Bagmara area and handed over the Manubankul Outpost with an ejahar. 3. On receipt of the complaint, O.C., Manubankul Outpost had forwarded the same to the O.C., Sabroom P.S. for registration of the case. Accordingly, Sabroom PS Case No. 2017/SBM/071 under Sections 363/376(2) of IPC and Section 6 of POCSO Act was registered and OC, PS endorsed the case for investigation. The investigating officer had carried on investigation. During investigation, the I.O. recorded the statements of available witnesses under Section 161 of CrPC. During investigation, it was revealed that accused Arun Tripura knowing fully well that his younger brother Barun Tripura being a married person, concealed or confined with the victim girl in his house to commit sexual intercourse with the victim and thereby he also abetted Barun Tripura giving a false promise to marry her and since the victim was a minor he has also committed the offence punishable under Section 17 read with Section 6 of POCSO Act. 4. Being satisfied with the prima facie evidence surfaced during investigation, the investigating officer had submitted charge-sheet against accused Barun Tripura for commission of offence punishable under Sections 417/366/376(2)(i)/368/343 of IPC and Section 6 read with Section 5(1) of POCSO Act and against Arun Tripura for commission of offence punishable under Sections 212/368 of IPC 5. In course of trial, learned Special (POCSO) Judge, South Tripura, Belonia had framed charges against the accused Arun Tripura under Sections 368, 109 read with Section 376(2) (i) of IPC and under Section 17 read with Section 6 of POCSO Act, 2012 to which he pleaded not guilty and claimed to be tried. Accused Barun Tripura was absconded after being released on bail from the court and thereafter, a standing warrant was issued against him as he was a proclaimed offender. 6. During trial, prosecution examined as many as 12 witnesses in support of their case; introduced some material documents those were exhibited. 7. After closure of prosecution evidence, the accused was examined under Section 313, CrPC with regard to the incriminating materials as surfaced against the accused person. 6. During trial, prosecution examined as many as 12 witnesses in support of their case; introduced some material documents those were exhibited. 7. After closure of prosecution evidence, the accused was examined under Section 313, CrPC with regard to the incriminating materials as surfaced against the accused person. The accused person claimed to be innocent and denied that he was falsely implicated with the case. He declined to adduce any evidence on his behalf. 8. After hearing the arguments of the learned counsels of the parties and considering the materials on record, the learned Special Judge imposed punishment against the accused-appellant as stated above. 9. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused-appellant has presented the instant appeal before this court. 10. We have heard Mr. A. Acharjee, learned counsel for the accused-appellant as well as Mr. S. Ghosh, learned Addl. P.P. for the State-respondent. 11. Mr. A. Acharjee, learned counsel for the appellant has submitted that the appellant Arun Tripura has been falsely implicated with this case because he is not FIR named accused. Even, there is no single allegation brought against the appellant by the complainant that the appellant had allowed the principal accused Barun Tripura in his house knowing fully well that Barun Tripura is a married person. Mr. A. Acharjee, learned counsel only on that ground has prayed for acquittal of the appellant. 12. On the other hand, Mr. S. Ghosh, learned Addl. P.P. supporting the judgment and order of conviction and sentence passed by the learned Special Judge has submitted that the prosecution case is well proved. Mr. Ghosh, learned Addl. P.P. further submits that from the evidence of victim girl (PW-1), it is apparent that the accused-appellant knowing fully well had allowed the principal accused Barun Tripura to confine or conceal her in his house where Barun Tripura had committed sexual intercourse with her. Thus, he has prayed for affirming the judgment and order of conviction and sentence passed by learned Special Judge. 13. Based on the aforesaid submissions, we have examined the records as well as the evidence put forth by the prosecution witnesses. 14. From the evidence of PW-1, it is revealed that the victim girl during her deposition stated that Barun Tripura forcefully had taken her from the road side of her house when she came on the road. 13. Based on the aforesaid submissions, we have examined the records as well as the evidence put forth by the prosecution witnesses. 14. From the evidence of PW-1, it is revealed that the victim girl during her deposition stated that Barun Tripura forcefully had taken her from the road side of her house when she came on the road. Barun Tripura took her in the house of one Karnai Tripura, where he committed sexual intercourse with her forcefully. She further deposed that she was there for about four days and during those days Barun Tripura had committed sexual intercourse with her. Subsequently, she was taken to his brother's house i.e. the house of Arun Tripura, the appellant herein. Arun Tripura allowed Barun Tripura to keep her in that house where she was again intercoursed by Barun Tripura. Nothing material difference is found in her cross-examination. 15. We have perused the victim's statements recorded under Section 164(5) of CrPC and after close scrutiny of her statements, it is revealed that the victim nowhere has stated that the appellant Arun Tripura had allowed her with Barun Tripura to stay in his house, rather, she stated that she was taken to the house of a friend of Barun at Tairuma. Even, in the FIR, there is no whisper that the victim girl was kept confined in the house of Arun Tripura. Only the victim after coming to the court during trial, testified that she was taken to the house of Barun's brother. So, we find that there is major deviation or contradiction between the statements given in her deposition and her previous statements. More so, the victim girl had specifically asserted the name of one Karnai Tripura in her deposition stating that she was taken to the house of said Karnai Tripura. The prosecution has also failed to produce that Karnai Tripura as a witness for the reasons best known to them. 16. On overall analysis, we are of the opinion that the prosecution has not been able to establish the fact beyond reasonable doubt that Arun Tripura was involved in wrongful confinement of the victim girl and prompted the principal accused Barun Tripura to be engaged in the sexual act with the victim girl. 17. 16. On overall analysis, we are of the opinion that the prosecution has not been able to establish the fact beyond reasonable doubt that Arun Tripura was involved in wrongful confinement of the victim girl and prompted the principal accused Barun Tripura to be engaged in the sexual act with the victim girl. 17. In view of above, since the evidence of PW-1 and the complaint itself do not construe punishment of the accused-appellant Arun Tripura under Sections 368/376(2)(i) of IPC and under Section 17 read with Section 6 of POCSO Act, we do not find any merit in the appeal that it is a case for wrongful confinement. Accordingly, the judgment and order of conviction and sentence dated 04.03.2020, passed by learned Special Judge, South Tripura, Belonia is interfered with and the same is set aside. The appeal is allowed. 18. Accordingly, the convict-appellant Arun Tripura is acquitted of the charge and set at liberty. Surety of the bail bond is also discharged from his liabilities. Send down the LCR's.