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2022 DIGILAW 14 (TRI)

Ripan Sharma v. State of Tripura

2022-01-10

ARINDAM LODH

body2022
JUDGMENT Heard Mr. A. Acharjee, learned counsel for the accused-appellant as well as Mr. S. Debnath, learned Additional PP appearing for the State-respondent. 2. This appeal under Section 374 Cr.P.C. is directed against the judgment of conviction and sentence dated 20.09.2019 passed by the learned Special Judge, Gomati Judicial District, Udaipur in case No. Special 14 of 2018 (POCSO) whereby and where under the appellant has been convicted under Section 8 of the POCSO Act and sentenced to suffer R.I. for 3 (three) years and to pay a fine of Rs. 5,000/- with default stipulation, and further convicted under Section 448 IPC and sentenced to suffer R.I. for 6 (six) months. 3. The facts of the case, as projected by the learned Special Judge, Gomati Judicial District, Udaipur, are as under: 'The prosecution case in short is that on 05.10.2018 one Smt. Chinu Sarkar, W/o Sri Maran Sarkar of Gakulpur, P.S. R.K. Pur, lodged a written complaint with the O/C, Women P.S. Udaipur alleging that on 01.10.2018, Monday, at about 11 a.m. in absence of the complainant and her husband in the house, the accused Ripan Sharma entered into their house and pounced on their minor daughter 'R' aged 16 years (name withheld). The accused forcefully imposed himself on 'R' and touched her breast and belly. Due to the offending acts of the accused, 'R' raised hue and cry and hearing her hue and cry when the neighbouring people came to the spot the accused fled away. It is stated that on this issue, a panchayet meeting was convened where the accused stated that he will defame the daughter of the complainant more badly'. 4. On the basis of the aforesaid complaint, FIR No. 2018WRP047 dated 05.10.2018 under sections 447/354 IPC was registered and entrusted the case to the Investigating Officer. During investigation, the I.O. recorded the statements of the victim girl and her mother alongwith other local people. The Judicial Magistrate also recorded the statements of the victim girl as well as the complainant under Section 164(5) Cr.P.C., which were arranged by the I.O. Having satisfied with the process of investigation and being found prima facie case against the convict, the I.O. had submitted the charge-sheet. 5. The Judicial Magistrate also recorded the statements of the victim girl as well as the complainant under Section 164(5) Cr.P.C., which were arranged by the I.O. Having satisfied with the process of investigation and being found prima facie case against the convict, the I.O. had submitted the charge-sheet. 5. On commencement of trial, the learned Special Judge framed charges against the accused-appellant (here-in-after referred to as the accused) under Sections 447/354 IPC and under Section 8 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried. 6. In course of trial, the prosecution had examined as many as 8 witnesses and upon closure of the prosecution evidences, the accused was examined under Section 313 (1) (b) Cr.P.C. by putting out the incriminating evidences against him but, the accused denied the veracity of all the prosecution evidences and expressed his willingness to adduce defence evidence. In support of his defence, the accused examined total six DWs including himself. 7. Thereafter, having heard argument advanced by the learned counsel appearing for the parties, the learned Special Judge had recorded the findings of guilt against the accused and convicted and sentenced him as aforestated. Being aggrieved by and dis-satisfied with the said judgment and order of conviction and sentence dated 20.09.2019, the accused has preferred the instant appeal before this court. 8. Mr. A. Acharjee, learned counsel appearing on behalf of the accused has submitted that the victim i.e. the daughter of the complainant is not at all trustworthy and totally unreliable. Mr. Acharjee, learned counsel has tried to persuade this court by inviting attention to the statements of the victim girl recorded under Section 164(5) Cr.P.C. Learned counsel for the accused has submitted that the victim has substantially improved her version from her earlier statements during the course of her examination before the learned court. Mr. Acharjee, has further submitted that the FIR had been lodged after four days of the occurrence of the incident, which appears to be fatal for the prosecution case. Added to it, Mr. Acharjee, learned counsel has submitted that the prosecution has failed to prove that at the time of the incident, the victim-girl was minor. According to Mr. Acharjee, learned counsel, there was a love affair and out of that love affair, the victim-girl had consented to meet the accused at her home in absence of her parents. Added to it, Mr. Acharjee, learned counsel has submitted that the prosecution has failed to prove that at the time of the incident, the victim-girl was minor. According to Mr. Acharjee, learned counsel, there was a love affair and out of that love affair, the victim-girl had consented to meet the accused at her home in absence of her parents. For the aforesaid reasons, Mr. Acharjee, learned counsel has urged that the accused is entitled to be acquitted. 9. On the other hand, Mr. S. Debnath, learned Additional PP has defended the findings and the judgment passed by the learned trial court. According to learned Additional PP, the prosecution has been able to prove the facts that the accused had entered into the room of the victim-girl in absence of her parents and molested her by way of touching various parts of her body. Learned Additional PP has submitted that the delay of four days in lodging the FIR was caused due to the fact that the victim and other members of her family were waiting for a decision from the local panchayat. 10. I have considered the aforesaid submissions rendered by the learned counsel appearing for the parties. I have also gone through the record minutely, particularly, the evidence of the victim-girl who led evidence as PW-2 and her statement recorded by the learned Magistrate under Section 164(5) Cr.P.C. 11. From the statements of the victim girl recorded under Section 164(5) Cr.P.C., it comes to light that on the fateful day and time when her parents were out of home for their own works, the accused had entered into her room and woke her up from sleep, and thereafter, touched her body. She further stated that the accused had expressed that he used to love her and wanted to marry her. She again stated that she could not call out anybody in the house out of fear. Thereafter, his mother had called the wife of cousin brother who used to reside next to her house. Thereafter, the brother's wife came and called her asking for a glass of water. The wife of her cousin brother had asked her who was in her room, but, she did not say anything to her. 12. Thereafter, his mother had called the wife of cousin brother who used to reside next to her house. Thereafter, the brother's wife came and called her asking for a glass of water. The wife of her cousin brother had asked her who was in her room, but, she did not say anything to her. 12. In course of trial, during her examination, the victim-girl as PW-2 deposed that while she was sleeping on that fateful date and time, the accused had entered into her room and offered his love to her, but, she did not agree and asked him to leave her room, but, as the accused was adamant, he embraced her and pressed her belly and breast. She further deposed that at that time, the mother of the accused sent one woman to their house to check whether her son was in their house. She further deposed that before arrival of the woman, the accused had left the house. She further deposed that thereafter other people had gathered. In cross-examination, she admitted that the statements she made under Section 161 Cr.P.C. that after entering her room the accused had called her by pushing her body or the mother of the accused sent a lady to their house and before arrival of the lady, the accused had left her house, were found to be absent. In chief-examination, the victim-girl stated that she was given marriage with another boy. 13. On meticulous scrutiny of her statement made in her examination under Sections 164(5) Cr.P.C., 161 Cr.P.C. and the statement she made before the learned court, I find there are lots of improvements. What strikes the mind of this court is that when the accused had entered into her room and allegedly pushed her body when she woke up, she did not make any attempt to raise any alarm. Her story that she did not raise any alarm out of fear appears to be unbelievable to this court. At the time of incident, it appears that the victim was attaining the age of 17 years, though, the age has not been properly proved and it was the defence case that she was more than 18 years. Her story that she did not raise any alarm out of fear appears to be unbelievable to this court. At the time of incident, it appears that the victim was attaining the age of 17 years, though, the age has not been properly proved and it was the defence case that she was more than 18 years. Another striking feature of the instant case is that the victim did not divulge anything about the presence of the accused in her room to her sister-in-law ('Boudi') when said 'Boudi' was sent by the mother of the accused to inquire about the accused. This non-disclosure of the presence of the accused in her room makes the evidence of the victim that the accused had forcibly entered into her room and embraced her without her consent throws enough doubt upon the integrity of PW-2. Moreso, the evidence let in by the other prosecution witnesses do not corroborate the versions of the victim (PW-2) and the complainant (PW-1). Moreso, from the evidence of PW-4, it transpires that there was love affair between the accused and PW-2. 14. Since this court has already doubted the integrity and trustworthiness of the victim-girl (PW-2), it is not necessary to discuss the evidence let in by the defence witnesses. 15. In my ultimate analysis, the prosecution has failed to prove the charges levelled against the accused. Accordingly, the judgment and order of conviction and sentence dated 20.09.2019 passed by the learned Special Judge, as aforestated, stands set-aside and quashed. The accused-appellant is set at liberty. He is discharged of his bail bond. The surety is also discharged. 16. Accordingly, the instant appeal stands allowed and thus disposed. Send down the LCRs.