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2022 DIGILAW 178 (TRI)

Srikanta Hrishi Das v. State of Tripura

2022-04-06

ARINDAM LODH

body2022
JUDGMENT 1. Heard Mr. S. Lodh, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Additional PP appearing for the respondent-State. 2. This appeal arises out of the judgment and order of conviction and sentence dated 28.02.2020 passed in connection with case No. Special (POCSO) 12 of 2018 passed by the learned Special Judge (POCSO), West Tripura, Agartala, whereby and whereunder the learned Special Judge, West Tripura, Agartala had convicted the appellant for the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO'), sentenced him to suffer R.I. for 3 (three) year and to pay a fine of Rs. 10,000/- with default stipulation, and also sentenced him to suffer R.I. for 6 (six) months and to pay a fine of Rs. 3,000/- for commission of offence punishable under section 451 IPC, and further sentenced him to suffer R.I. for 1 (one) month for commission of offence under Section 323 IPC. 3. Briefly stated, a complaint was lodged with the Officer-in-Charge of West Agartala Women police station stating inter alia that on 06.01.2018 when the complainant returned to her house in the evening at about 7:00 PM, at that time, one Noni Gopal Das came to her house to provide meat. At that point of time, the accused Shrikanta Hrishi Das had trespassed her house and assaulted her and also caused damage to her hut. After hearing hue and cry, the neighbouring people arrived at the spot. She went to hospital for treatment, but, did not take admission for the reason that her daughters were alone in the house. It is further stated in the complaint that the accused Shrikanta Hrishi Das had molested her daughter on 06.01.2018 which was divulged to her by her daughter on 07.01.2018. 4. The said complaint was registered as West Agartala Women PS case no. 03 of 2018 under Sections 448/354(B)/323 of IPC and under Section 12 of the POCSO Act. The matter was investigated by the investigating officer and after completion of investigation submitted charge-sheet being no. 32 of 2018, dated 31.05.2018 against the accused appellant, here-in-after referred to as the 'accused'. 5. At the commencement of trial, charge was framed against the accused under Section 451/354/323 IPC read with Section 8 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried. 6. 32 of 2018, dated 31.05.2018 against the accused appellant, here-in-after referred to as the 'accused'. 5. At the commencement of trial, charge was framed against the accused under Section 451/354/323 IPC read with Section 8 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried. 6. The prosecution to establish the charges had examined as many as 11 witnesses and introduced some documents (Exbt 1 to 12). After closure of recording evidences, the accused was examined under Section 313 Cr.P.C. wherein he stated that all the allegations leveled against him were false and he was falsely implicated in the case. 7. Having heard the learned counsel appearing for the parties, the learned Special Judge convicted and sentenced the accused, as afore-stated. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the appellant has preferred the instant appeal before this court. 8. Mr. Lodh, learned counsel appearing for the accused has submitted that the learned Special Judge has mis-directed himself in convicting the accused in connection with the case. Mr. Lodh, learned counsel submits that the prosecution has miserably failed to establish as to when the incident had actually occurred. Mr. Lodh, learned counsel for the accused has drawn the attention of this court to various discrepancies as surfaced in the evidences of the prosecution witnesses. 9. Mr. Ghosh, learned Additional PP has submitted that though there are some improved versions in the prosecution witnesses, but, the findings of the learned Special Judge should not be disturbed. 10. I have considered the submissions for learned counsel appearing for the parties. I have perused the evidences and materials on record and the judgment passed by the learned Special Judge. 11. After careful scrutiny of the evidences on record, I find that the complainant (PW-1) has stated in her complaint that she was assaulted by the accused on 06.01.2018, and after hearing her hue and cry PW-4 and alongwith her husband, namely, Nani Gopal Das came to the spot along with other neighbouring people, and at that time, the accused had entered into her house and physically assaulted her after causing some damage to her hut. Her two daughters were also assaulted by the accused. She further deposed that on 07.01.2018 her daughter, aged about 9 years, told her that she was molested by the accused on 06.01.2018 in the afternoon. Her two daughters were also assaulted by the accused. She further deposed that on 07.01.2018 her daughter, aged about 9 years, told her that she was molested by the accused on 06.01.2018 in the afternoon. According to her, she went to the hospital. However, medical report of one of her daughters (name withheld) which were collected by the investigating officer reveals that all of them visited the hospital on 06.01.2018 at about 11:45 p.m., but, surprisingly in the medical examination reports of the hospital no date and time has been mentioned, even there is no registration number of the hospital. The daughter of the complainant (PW-1) was medically examined, and the doctor opined that there was no external and internal injury on her body. The question is when the medical reports, as collected by the investigating officer, reveals that there were some injuries on the person of the complainant and her daughter as they were examined on 06.01.2018, then, how no such injuries were detected when she was medically examined on 08.01.2018. 12. After perusal of the evidences, I find that the complainant said that the accused had asked the victim girl to give him the key of the room to open the lock, and she also asked her elder sister to go outside the room, and after entering into the room the accused had molested the victim girl, aged about 9 years. The question is, if the girl was inside the room, then, how she had given the key to the accused. Furthermore, the complainant stated that at the point of outraging the modesty of her daughter, her elder daughter was not in the house, but, the victim girl (PW2) as well as her elder sister (PW-3) deposed that they were playing together in their house. 13. Another important aspect is that, PW-3, the elder daughter of the complainant deposed that the accused asked her to go outside the hut, and thereafter, he removed the pant of her younger sister, and thereafter, tortured her. When this witness, i.e. the elder sister of the victim girl was asked question as to what sort of torture was done by the accused, she remained silent. She further deposed that when the neighbouring people came to the spot, at that time also the accused was standing outside their home. When this witness, i.e. the elder sister of the victim girl was asked question as to what sort of torture was done by the accused, she remained silent. She further deposed that when the neighbouring people came to the spot, at that time also the accused was standing outside their home. It is also noticed that Nani Gopal Das who went to the house of the complainant alongwith meat to give the same to the complainant was not examined without any explanation. Smt. Ratna Sarkar (Das) (PW-4), wife of Sri Nani Gopal Das, though appeared at the spot, but, did not say anything about the allegation of molestation, as alleged by the complainant. She only said that the accused had assaulted the complainant. In cross-examination she admitted that she did not state to the police that the daughter of the complainant told her that the accused had opened her pant, rather she stated to the police that she did not tell anything to her. She also admitted in cross-examination that she did not state to the police that hearing cry of the daughter of the complainant she entered into their hut. She admitted that she only stated to the police that her husband went to the house of the complainant to give meat for the daughters of the complaint. 14. On overall consideration of the evidences and materials on record, I find that there are serious discrepancies, which creates doubt in the mind of this court about the very genesis and genuineness of the allegations levelled against the accused. As such, I cannot agree with the findings as arrived at by the learned Special Judge while convicting and sentencing the accused. Accordingly, the judgment and order of conviction and sentence dated 28.02.2020 as recorded by the Ld. Special Judge (POCSO Act), West Tripura, Agartala, in Special (POCSO) 12 of 2018, stand set-aside and quashed. The appeal stands allowed. 15. It is informed that the accused-appellant is on bail. Accordingly, the accused-appellant is discharged from the liability of his bail bond and his surety is also discharged. Send down the LCRs. Pending application(s), if any, also stands disposed.