Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 252 (TRI)

Pranab Datta @ Bapan v. State of Tripura

2022-05-25

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure challenging the judgment and order of conviction dated 01.09.2020. The accused-appellant herein was sentenced to suffer rigorous imprisonment for 7(seven) years and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for six months, for an offence punishable under Section 366 of the Indian Penal Code, and also sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for one month, for an offence punishable under Section 343 of the Indian Penal Code, and further sentenced to suffer rigorous imprisonment for 10(ten) years and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for one year for committing offence punishable under Section 376(2)(i) of the Indian Penal Code on 03.09.2020 passed in Special 16(POCSO) of 2019 by the learned Special Judge, South Tripura, Belonia. 2. The facts of the case in brief, which may be relevant for the present purpose and manifest on the record are that on 16.12.2018, a written complaint was lodged by one Smt. Mina Karmakar of Ramthakurpara, P.S. Belonia, District-South Tripura with the Belonia Women Police Station alleging inter alia that on 16.12.2018 at around 11.30 A.M. her minor daughter (name withheld) like all other day left her residence bound towards her school on the pretext of attending examination. But, since she did not return home till night, she started searching for her daughter and she came to learn that one Bapan Datta @ Pranab Datta has kidnapped her minor girl. She also stated that she came to learn that her minor daughter was kidnapped by enticing her. 3. On receipt of the said ejahar, the Officer-in-Charge of Belonia Women Police Station registered the same as Belonia Women P.S. Case No.95 of 2018 under Section 366-A of the IPC. During the course of the investigation, police recovered the victim girl on 24.12.2018. They also arrested the accused person, the appellant herein. On the same day, 10(ten) witnesses were examined. The statement of the victim-girl was recorded under Section 164(5) of Cr.P.C. The medical examination of the victim-girl was also arranged. During the course of the investigation, police recovered the victim girl on 24.12.2018. They also arrested the accused person, the appellant herein. On the same day, 10(ten) witnesses were examined. The statement of the victim-girl was recorded under Section 164(5) of Cr.P.C. The medical examination of the victim-girl was also arranged. Thereafter, the investigating officer filed the charge sheet against the accused-appellant for the commission of offence punishable under Section 366/376(2)(i) of the IPC and under Section 6 of the POCSO Act. 4. On receipt of the charge sheet, the learned Special Judge, South Tripura, Belonia took cognizance of the offence punishable under Section 366/376(2)(i) of the IPC and under Section 6 of the POCSO Act against the appellant herein. 5. The learned Special Judge framed the charge against the appellant under Section 366, 343, 376(2)(n) of the IPC and under Section 6 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried. 6. During the course of the trial, the prosecution adduced as many as 10(ten) witnesses and they were cross-examined. After the closure of the evidence, the appellant was examined under Section 313 of Cr.P.C., wherein, the accused-appellant declined to adduce any defence witness. 7. On hearing the argument of both sides, the learned Special Judge, South Tripura, Belonia by his Judgement dated 01.09.2020 sentenced and convicted the appellant as stated here-in-above. 8. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence dated 01.09.2020, the accused-appellant herein preferred the instant appeal and prayed for the following reliefs:- '(i) Admit this appeal; (ii) Call for the records of case No. Special 16(POCSO) of 2019 from the Court of learned Special Judge, South Tripura, Belonia; (iii) After hearing both the parties may please to allow the prayer for recording additional evidence and calling for the un-examined witnesses, as prayed for in the application under Section 391(1) of the C.P.C. (iv) On Taking into consideration the additional evidence as well as the evidence on record and on hearing both the parties may please set aside the judgment of conviction and order of sentence passed in Case No. Special 16(POCSO) of 2019 by the learned Special Judge, South Tripura, Belonia, dated 01.09.2020 and may pleas set the appellant at liberty.' 9. Heard Mr. A. Bhattacharjee, learned counsel appearing for the appellant herein as well as Mr. Heard Mr. A. Bhattacharjee, learned counsel appearing for the appellant herein as well as Mr. R. Datta, learned P.P. appearing for the State-respondent. 10. Mr. A. Bhattacharjee, learned counsel appearing for the accused-appellant herein argued before this Court that the victim-girl in his statement made under Section 164(5) of Cr.P.C. clearly stated that she had a love affair with the accused-appellant herein and on the alleged date i.e. on 16.12.2018, she had voluntarily boarded the vehicle of the accused-appellant. She voluntarily went to the residence of the relative of the accused appellant. From the statement of the victim-girl, it is clear that she never said that on that fateful day, she was forcefully kidnapped or forcefully kept in wrongful confinement, or even she was forcefully raped by the accused-appellant. Mr. Bhattacharjee, learned counsel further argued that the birth certificate of the victim girl seized and identified by P.W.1 and P.W.2 (father and mother of the victim girl) and marked as Exhibit-2 to establish the age of the victim girl was also not proper and was beyond the settled principles of law as the original record based on which, the said birth certificate was issued was never seized or exhibited. The maker of the birth certificate was also not adduced as a witness by the prosecution. Further, the P.W.10, the investigating officer in his examination-in-chief also admitted that he did not mention in his C/D as to when the birth certificate was issued by the authority, i.e. the Nagar Panchayet. Thus it leaves much room to doubt the minority of the victim girl. Mr. Bhattacharjee, further submitted that these two vital lacunas, namely, contradiction left between the statement of the victim recorded under Section 164(5) of Cr.P.C. and her deposition before the learned Special Judge and doubt left in placing reliance upon the birth certificate of the victim girl to establish her as minor, if read together and re-examined to clarify the doubt, may establish the innocence of the accused-appellant. 11. Mr. R. Datta, leaned P.P. appearing for the State-respondent vehemently opposed the argument of the learned counsel appearing for the appellant and placed reliance upon the authenticity of the said birth certificate and urged this Court to uphold the judgment and order of conviction as passed by the Court below. 12. 11. Mr. R. Datta, leaned P.P. appearing for the State-respondent vehemently opposed the argument of the learned counsel appearing for the appellant and placed reliance upon the authenticity of the said birth certificate and urged this Court to uphold the judgment and order of conviction as passed by the Court below. 12. We have considered the submission of both the learned counsels and particularly the submission the victim-girl made under Section 164(5) of C.r.P.C. which she made immediately after her recovery. The statement made by the victim under Section 164(5) of C.r.P.C is reproduced herein-under:- 'For last 1 1/2, I know Pranab Datta, we love each other. On 16th December last, when I was on the way to private tuition and reached Shaltilla, Pranab came on one vehicle and asked me to get into the vehicle and that we would go on a visit. Therefore, I left my bicycle in front of the house of one of my acquaintance and got into the vehicle. Pranab took me to one of his relatives' house in Kalchar4a, Buratila. Having reached there, at first I did not see anyone there. Later on I realized that Pranab had brought me. When people of that house came in the evening, Pranab said to them, 'We eloped long time back and now we will stay in their house.' At first the people of that house objected but later on agreed to keep us. As it became night, I could not return home. Therefore, afterwards I though that as I had already spent one night, my parents would not accept me. Therefore, I stayed back with Pranab. Once Pranab had put vermilion on me in Udaipur Matabari. Therefore, I accepted him as my husband and wanted to stay with him. I had physical relation with pranab.' 13. In the above statement of the victim girl recorded under Section 164(5) of Cr.P.C., she clearly stated that the accused-appellant herein and the victim girl are lovers. They are into relationship and she accepted him as her husband. He applied vermilion on her in the temple and they stayed together. 14. Further the prosecution has not been able to convince this Court on the point of proving the age of the victim-girl on the strength of the birth certificate. No concerned officer has been examined to prove the birth certificate. The original birth certificate is not found in the record. 14. Further the prosecution has not been able to convince this Court on the point of proving the age of the victim-girl on the strength of the birth certificate. No concerned officer has been examined to prove the birth certificate. The original birth certificate is not found in the record. On the strength of the Xerox copy and that to not marked by the concerned officer, the said birth certificate cannot be treated as an authentic document. 15. In view of the above discussions and evidence on record, the judgment and order of conviction dated 01.09.2020 passed in Special 16(POCSO) of 2019 is set aside, and consequently, the convict-accused herein, Sri Pranab Datta @ Bapan is to be set at liberty forthwith, if he is not wanted in connection with any other case. 16. During the course of the argument, learned P.P. has indicated that presently, the victim is not willing to stay with the accused appellant and she is pursuing her education. There is also apprehension of threat to her life from the accused-appellant herein. Further, learned P.P. contended that in regard to the relation between the victim and the accused-appellant herein and the victim-girl accepting the accused-appellant herein in view of applying vermilion on her forehead has no legal marital value. This Court is not inclined to go into the issues raised by the learned P.P. However, in so far as the safety of the victim is concerned, this Court directs the accused person, i.e., the appellant herein not to interfere with the peaceful life of the victim. In the event, if there is any threat to the victim, she is at liberty to avail remedies under the law. 17. With this observation and direction, this instant appeal is allowed and thus disposed of as a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs.