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2022 DIGILAW 218 (TRI)

Paresh Das v. State of Tripura

2022-05-04

ARINDAM LODH

body2022
JUDGMENT 1. Heard Mr. T. D. Majumdar, learned Senior Counsel assisted by Mr. Biplab Debnath, learned counsel appearing for the appellant. Also heard Mr. S. Ghosh, learned Additional P.P. appearing for the State-respondent. 2. This appeal is directed against the judgment and order of conviction and sentence dated 06.02.2021, passed by the learned Special Judge, West Tripura, Agartala, in case No. Special (POCSO) 35 of 2017 whereby and whereunder the appellant was convicted under Section 451 of the Indian Penal Code and sentenced to suffer simple imprisonment for 1(one) year and also to pay a fine of Rs. 5,000/- with default stipulation and, further convicted the appellant under Section 354 of the Indian Penal Code and in the alternative under Section 8 of the POCSO Act and sentenced him to suffer Rigorous Imprisonment for 3(three) years with default stipulation. 3. The facts of the case, in brief, are that, the mother (PW-1) of the victim girl (PW-2) lodged a complaint with the Officer-In-charge of Jirania Police Station stating inter-alia that on 27.06.2017 at about 8 am, the appellant entered into the house of the complainant when her daughter was alone and forcibly grasped her minor daughter. At that time, she slapped the appellant. Thereafter, the appellant ran away. 4. The said complaint lodged on 27.6.2011 was treated as FIR. Investigation was carried out. Statements of the victim under Section 164(5) of the Cr.P.C. were recorded by the Magistrate. The I.O. arranged for medical examination of the victim girl, and thereafter, recorded the statements of the available witnesses, and being found a prima-facie case, the I.O. submitted charge-sheet against the accused-appellant. 5. Having receipt of the charge-sheet, the learned Special Judge had taken cognizance of the offence. At the commencement of trial, charge was framed under Section 451 of the Indian Penal Code and Section 8 of the POCSO Act, and further under Section 506 of the Indian Penal Code. 6. On closure of recording evidences, the appellant was examined under Section 313 of Cr.P.C. wherein he denied all the allegations levelled against him by the prosecution witnesses and pleaded to be innocent. Having heard the learned counsels appearing for the parties, and on consideration of the evidences and materials on record, learned Special Judge convicted and sentenced the appellant as afore-stated. 7. Having heard the learned counsels appearing for the parties, and on consideration of the evidences and materials on record, learned Special Judge convicted and sentenced the appellant as afore-stated. 7. Feeling aggrieved, and dissatisfied with the aforesaid conviction and sentence, the convict-appellant has preferred the instant appeal before this court. 8. Mr. T. D. Majumdar, learned senior counsel appearing for the appellant submitted that the prosecution has tried to project a false case against the appellant. From the evidences of the prosecution witnesses it comes to light that there was serious enmity between the complainant and the appellant regarding the issue to demarcate the boundary of their respective houses. Mr. Datta Majumdar, learned senior counsel has further questioned that, how a person can enter into the house in presence of mother of the victim and sexually harass her. Learned senior counsel further submits that, during the course of evidence before the learned trial court, PW-1 deposed that at that point of time her victim daughter (PW-2) was alone in the house and she went to the paddy field to supply tiffin to her husband, but, in the FIR, this statement is wholly absent. Learned senior counsel has questioned if the statement of PW-1 is believed that she went to the paddy field at that time, and taking the advantage that the victim was alone, the appellant entered into the house, then, how it would be possible for the complainant (PW-1) to slap the appellant. As such, according to learned senior counsel, the complaint was based on some concocted facts and circumstances out of enmity between the complainant and the appellant, and the prosecution has miserably failed to establish the charges levelled against him. Learned senior counsel showing the order dated 06.07.2017 has drawn the attention of this court that the learned trial court granted bail to the appellant after 10 days from the date of occurrence, on consideration of the health condition of the accused that he was suffering from brain haemorrhage, and the appellant is still suffering from this ailment and at present, he is more than 70 years old. Thus, learned senior counsel has prayed for acquittal of the appellant. 9. On the other hand, Mr. Ghosh, learned Additional P.P. has submitted that the learned trial Judge after considering the records and the evidences thereof rightly convicted and sentenced the appellant. Thus, learned senior counsel has prayed for acquittal of the appellant. 9. On the other hand, Mr. Ghosh, learned Additional P.P. has submitted that the learned trial Judge after considering the records and the evidences thereof rightly convicted and sentenced the appellant. According to learned Additional P.P., there is no reason to disbelieve the victim (PW-2) and her mother (PW-1) that the victim had been sexually harassed by the appellant. 10. I have considered the rival submissions of the learned counsel appearing for the parties. I have perused the evidences and materials on record. I have also perused the judgment passed by the learned trial judge. On perusal of the complaint, I find that the complainant (PW-1) has stated that she was in the paddy field when the appellant entered into her house and sexually assaulted her minor daughter (PW-2). She has stated in her complaint that when she found the appellant pressing different parts of the body of the victim she made a slap to the appellant, and thereafter, the appellant ran away. 11. During the course of her recording evidence as PW-1, she has corroborated this vital piece of evidence that the appellant had entered into the house when her victim daughter was alone and she went to the paddy field to supply tiffin to her husband. On her return to the house she found the appellant sexually harassing PW-2 by touching different parts of her body. In cross-examination she denied that they had any dispute regarding property matter with the appellant. PW-2 supported the version of PW-1 and clearly stated that when she was alone in the house, the appellant entered into the kitchen, where she was sexually harassed. 12. I have given my thoughtful considerations to the evidences and materials on record as well as the present age of the appellant. At the time of hearing, the appellant on question of sentence has submitted that he was attaining the age of about 71 years and at the fag end of his life. The appellant also submitted that he was an ailing person unable to perform his daily pursuits. 13. At the time of hearing, the appellant on question of sentence has submitted that he was attaining the age of about 71 years and at the fag end of his life. The appellant also submitted that he was an ailing person unable to perform his daily pursuits. 13. On overall consideration of the evidences and materials on record, I am unable to arrive at a different finding than, that of the findings as arrived at by learned trial Judge that the appellant is guilty of committing offence, but, this court has some doubt about the commission of offence under Section 8 of the POCSO Act. However, it has been established by the prosecution that the appellant has sexually harassed the victim girl (PW-2) as contemplated under Section 12 of the POCSO Act. Accordingly, I am not inclined to interfere with the conviction of the appellant. However, considering the gravity of offence, the sentence recorded by the Ld. trial court under Section 8 of the POCSO Act is converted to Section 12 of the said Act and considering the age of the appellant, I sentence him to suffer Rigorous Imprisonment for 30 (thirty) days along with a fine of Rs. 1,00,000/- (one lakh) to be paid to the victim within a period of 2 weeks from today. 14. At this juncture, learned senior counsel has submitted that the appellant has just been released from the hospital and he is not physically fit. As such, I direct the appellant to surrender before the court after 3 weeks i.e. on 25th May, 2022 without fail. It is made clear that, if the appellant fails to deposit the fine money of Rs. 1 lakh to the court of learned Special Judge, Court No. 2, West Tripura, Agartala, within the specified period of 2 weeks, then, the sentence as declared by the learned Special Judge in his judgment dated 06.02.2021 shall be restored, and in that event, the appellant has to suffer the sentence of 3 years along with fine in terms of the judgment passed by the learned Special Judge. It is further made clear that since the appellant had already undergone 10 days of imprisonment, this period of imprisonment shall be set off under section 428 of Cr.P.C. The appellant shall have to suffer the remaining period of sentence subject to fulfillment of the aforesaid conditions. Accordingly, the instant appeal is partly allowed. It is further made clear that since the appellant had already undergone 10 days of imprisonment, this period of imprisonment shall be set off under section 428 of Cr.P.C. The appellant shall have to suffer the remaining period of sentence subject to fulfillment of the aforesaid conditions. Accordingly, the instant appeal is partly allowed. Send down the LCRs.