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Tripura High Court · body

2022 DIGILAW 216 (TRI)

Panna Kumar Saha v. State of Tripura

2022-05-02

ARINDAM LODH

body2022
JUDGMENT 1. Heard Mr. P. K. Biswas, learned senior counsel and Mr. T. D. Majumder, learned senior counsel, assisted by Mr. Biplab Debnath, learned counsel and Ms. S. Debbarma, learned counsel appearing for the appellant. Also heard Mr. Ratan Datta, learned P.P. assisted by Mr. S. Ghosh, Additional P.P. appearing for the State-respondent. 2. The appellant has been convicted and sentenced to suffer imprisonment for a period of 3(three) years along with a fine of Rs. 5,000(five thousand) for committing offence under Section 8 of the POCSO Act. Being aggrieved by and dissatisfied with the said sentence the convict has preferred the present appeal. 3. The facts of the case, in brief, are that: i) The father (PW1) of complainant lodged a complaint, stating inter alia that his son was subjected to sexual assault by the convict-appellant. On receipt of the said complaint, an FIR was registered by the officer-in-charge of the Police Station. Investigation was carried out. During investigation the statement of the victim boy was recorded under section 164(5) of Cr.P.C. The I.O. has recorded the statement of the available witnesses including the parents of the victim. Thereafter, charge-sheet was filed. Cognizance was taken by the learned Special Judge. At the commencement of trial, charge under Section 8 of the POCSO Act was framed against the appellant. During the course of trial, prosecution had examined as many as 12 witnesses and introduced some documents which were brought into evidence, being marked as exhibits. After closure of recording the evidences, the convict had been examined under Section 313 Cr.P.C. when he denied the allegations leveled against him by the prosecution witnesses. Having heard learned counsel appearing for the parties and on consideration of the evidence on record, the learned Special Judge convicted and sentenced the accused-appellant as afore-stated. Hence, this appeal before the court. 4. Mr. P. K. Biswas, learned senior counsel appearing on behalf of the appellant has drawn the attention of this court to some contradictions between the FIR and the statements of the prosecution witnesses including PW-2. Mr. Biswas, learned senior counsel has laid strong emphasis on the defect of investigation that the mobile phone through which the accused had asked the mother (PW-3) of the victim to attend the victim boy to his house for tuition has not been proved, and that is the genesis of the case. Mr. Biswas, learned senior counsel has laid strong emphasis on the defect of investigation that the mobile phone through which the accused had asked the mother (PW-3) of the victim to attend the victim boy to his house for tuition has not been proved, and that is the genesis of the case. According to learned senior counsel, the police has seized the mobile in course of investigation, but, no attempt was made to record the CDR to prove the circumstance that the convict-appellant had at any point of time talked with PW-3. Next submission as made by learned senior counsel for the appellant is that PW-1 in his complaint has stated that as soon as the victim entered into the house of the appellant, he was assaulted sexually by him, but, in his evidence he has stated that the victim boy being instructed by his mother went to the house of the convict appellant. Thereafter, he went to the market and returned after half an hour to the house when he called the victim boy to his room and assaulted the boy sexually. Learned senior counsel also has drawn my attention to the previous statements of the victim boy where the statements that in the room, the victim boy was asked to open his wearing apparels and the convict had touched the private parts of the victim boy are found to be absent. 5. On the other hand, Mr. Datta, learned P.P. has submitted that the part of the evidences, as aforestated, though, was not found in his previous statement recorded under Section 161 Cr.P.C., but, this part of the statement had been corroborated with his immediate statements recorded under Section 164(5) Cr.P.C., and attention of PW-2 was never drawn to his statement recorded under Section 164(5) of the Cr.P.C. 6. I have perused the records and considered the submissions of learned counsels appearing for the parties. 7. True it is, that the investigation officer, though, seized the mobile phone, he has not taken into consideration to send the said mobile to SFSL to find out CDR. In my opinion, it can be said to be a defective investigation, for which, the accused cannot be put in advantageous position. 7. True it is, that the investigation officer, though, seized the mobile phone, he has not taken into consideration to send the said mobile to SFSL to find out CDR. In my opinion, it can be said to be a defective investigation, for which, the accused cannot be put in advantageous position. On careful scrutiny of the records, I find that the vital part of the evidence, as let in by PW-2, the victim himself, that he was sexually assaulted by the convict-appellant has not been contradicted by way of drawing his attention to his immediate statement recorded under Section 164(5) of Cr.P.C. I have also considered the fact that PW-1 immediately lodged the information to the police about the incident. So, there is no delay in lodging the FIR. 8. Section 29 of the POCSO Act clearly postulates that initial presumption must be with the prosecution until and unless contrary is proved. Here, in my opinion, on overall consideration of the evidences and materials on record, the prosecution has been able to discharge its burden. The defence i.e. the convict-appellant has not made any effort to discard the evidence as let in by the prosecution witnesses. 9. Having observed thus, in my opinion, the conviction as imposed by learned Special Judge should be upheld, but, considering the nature of offence and surrounding circumstances, I am of the opinion that proportionality of the sentence can be maintained if the sentence is modified and converted to Section 12 of the POCSO Act. 10. Accordingly, the convict-appellant is sentenced to suffer rigorous imprisonment for 1 month (30 days) and he shall pay a fine of Rs. 50,000/- (fifty thousand) within a period of 2 (two) months from today. The fine money shall be deposited to the court of learned Special Judge, and the learned Special Judge on receipt of such payment shall pay the same to the victim within period of next 7 (seven) days. It is also observed that the convict-appellant has already suffered 30 (thirty) days of imprisonment. This sentence shall be set off under Section 428 of the Cr.P.C. It is made clear that, if the said fine of Rs. 50,000/- is not paid within aforesaid stipulated period, then, the convict-appellant shall suffer rigorous imprisonment for 3 (three) years, as sentenced by learned Special Judge. 11. This sentence shall be set off under Section 428 of the Cr.P.C. It is made clear that, if the said fine of Rs. 50,000/- is not paid within aforesaid stipulated period, then, the convict-appellant shall suffer rigorous imprisonment for 3 (three) years, as sentenced by learned Special Judge. 11. In the result, the judgment and order of conviction do hereby upheld, but, sentence dated 08.04.2021 is modified to the extent as indicated above, and thus, disposed of. Send down the LCRs.