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2022 DIGILAW 258 (TRI)

Setu Ghosh v. State of Tripura

2022-05-28

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - Heard Mr. Kawsik Nath, learned counsel appearing for the appellant. Also heard Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent. 2. The present appeal is directed against the judgment and order of conviction and sentence dated 09.02.2021, passed by the Ld. Special Judge, Fast Track Special Court, Unakoti Judicial District, Kailashahar, in Case No. Special (POCSO) 10/2019 whereby and whereunder the appellant herein has been convicted under Section 8 of POCSO Act and was sentenced to suffer simple imprisonment for three years. 3. Facts of the case, in brief, are that, on the fateful date and time the victim was taken by the appellant to his nearby house. After they entered into the room the appellant had closed all the doors and the windows of the room. In the complaint it is stated that inside the room the daughter of the complainant was sexually assaulted by the appellant. 4. The said complaint lodged by the father (PW-1) of the victim girl was treated as FIR. Having registered the FIR, the Officer In-Charge of the Police Station endorsed the case to the I.O. The I.O. during his investigation recorded the statements of the prosecution witnesses and also arranged for recording the statement of the victim girl under Section 164(5) of the Cr.P.C. The victim was medically examined. The I.O. collected the reports of the Medical Officer. Thereafter, on being satisfied with the evidence so collected, the I.O. has submitted the charge-sheet against the appellant. 5. The learned Special Judge taking cognizance of the offence had framed charges against the appellant under Section 8 of the POCSO Act 2012, and under Sections 341/376 AB read with Section 511 of IPC. 6. To substantiate the aforesaid charges, the prosecution had introduced as many as 15(fifteen) witnesses. The prosecution also introduced relevant documents including medical examination report of the victim girl. After completion 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, but, he denied to adduce evidence on his behalf. 7. Having heard the learned counsel appearing for the parties and after perusal of the records, the learned Special Judge held that the appellant is guilty of committing the offence punishable under Section 8 of the POCSO Act and convicted and sentenced the appellant as afore-stated. 8. 7. Having heard the learned counsel appearing for the parties and after perusal of the records, the learned Special Judge held that the appellant is guilty of committing the offence punishable under Section 8 of the POCSO Act and convicted and sentenced the appellant as afore-stated. 8. Feeling aggrieved, and dissatisfied with the aforesaid conviction and sentence, the appellant has preferred the instant appeal before this court. 9. Mr. Nath, learned counsel appearing for the appellant has submitted that out of enmity the appellant has been implicated with the instant case. In support of his submission, Mr. Nath, learned counsel has drawn my attention to the deposition of PW-10, Gita Sabdakar, who during her evidence has stated that 'it is a fact that there is a dispute between the accused and Ratan Sabdakar and Hari Sabdakar in connection with a ring-well nearby their house'. 10. I have taken note of this part of evidence as let in by PW-10. On further perusal of the deposition of PW-10, it comes to light that, PW-10 has specifically stated that 'I do not have any dispute with complainant Ratan Shabdarkar and we reside happily with each other'. PW-10, has further stated that 'It is not true that I do not bring out the victim under the bed of Setu Ghosh'. 11. Mr. Nath, learned counsel has also submitted that from the sketch map it reveals that the house of the appellant is far away from the house of the victim girl. Mr. Nath, learned counsel has further submitted that the medical report does not support the case of the prosecution that the victim girl was sexually assaulted, as defined under Section 7 of the POCSO Act. To support his submission that the appellant is an innocent, Mr. Nath, learned counsel has submitted that the appellant at the time of commission of alleged offence was attaining the age of 70 years, and he was residing with his wife in the same house. 12. On the other hand, Mr. S. Debnath, Learned Addl. P.P. has submitted that the victim girl in her evidence has narrated the entire incident. In her evidence, the victim girl who deposed as PW-2 has wholly corroborated the statements she made before the Magistrate while recording her statement under Section 164 of the Cr.P.C. Mr. Debnath, learned Addl. 12. On the other hand, Mr. S. Debnath, Learned Addl. P.P. has submitted that the victim girl in her evidence has narrated the entire incident. In her evidence, the victim girl who deposed as PW-2 has wholly corroborated the statements she made before the Magistrate while recording her statement under Section 164 of the Cr.P.C. Mr. Debnath, learned Addl. P.P. has further submitted that PW-10 has never stated that the parents of the victim girl had any enmity with the appellant. PW-10 has only stated that there was a dispute between the accused and Ratan Sabdakar and Hari Sabdakar in connection with a ring well nearby their house. Mr. Debnath, learned additional PP has further submitted that only on the basis of this isolated statement not being corroborated by other testimonies, the judgment and order of conviction passed by the learned Special Judge may not call for interference. 13. I have considered the submissions of the learned counsel appearing for the parties. I have carefully scrutinized the evidence let in by the prosecution witnesses. At the outset, I have perused the evidence of PW-2, the victim girl. From her evidence, it is seen that she has categorically stated that she was called by her 'Jethu', the appellant herein and she went there thinking that he will give her some biscuits to eat, but, when she entered into the room, the appellant had closed the door and windows and opened her panty and also took off the gamcha (wearing apparel) worn by the appellant. Thereafter, the appellant sat over her and touched her hands. She further deposed that after sometime, when everyone started calling her, the accused made her to go under the bed and opened the door. Thereafter, she deposed that she was brought outside the bed by her 'Jethi', namely, Mira (PW-1) when she divulged what the appellant had done with her. Deposing further she stated that she was taken to hospital and also to the court. She identified her statements recorded under Section 164(5) of the Cr.P.C. Being confronted with cross-examination, no material has come out to discredit her evidence. It is found that the victim girl has mentioned the name of 'Mira' who took her off, which leads this court to peruse the evidence of said Smt. Mira Sabdakar, who deposed as PW-11. 14. She identified her statements recorded under Section 164(5) of the Cr.P.C. Being confronted with cross-examination, no material has come out to discredit her evidence. It is found that the victim girl has mentioned the name of 'Mira' who took her off, which leads this court to peruse the evidence of said Smt. Mira Sabdakar, who deposed as PW-11. 14. On perusal of the deposititon of PW-11, it comes to light that the said witness has corroborated the statements of the victim girl. Furthermore, PW-11 has categorically stated that the appellant was forced to open the door of the room and after entering into the room she found the victim girl under the bed of the appellant, and she along with others also saw that her panty was opened. 15. PW-1, the father-complainant as well as PW-12, the mother of the victim girl also have deposed that after their arrival, the victim girl had narrated them the entire incident as to how she was sexually assaulted by the appellant. 16. I have gone through the statement of the victim girl recorded under Section 164(5) of Cr.P.C wherefrom it becomes evident that the victim girl has wholly corroborated the statements, what she stated in her examination under Section 164(5) Cr.P.C. during her deposition before the court in course of trial as to how she was sexually assaulted by the appellant. 17. To deal with the submission of the learned counsel that the medical report does not support the fact of injury as allegedly suffered by the victim girl, it is settled proposition of law that injury is not a sine quo non to establish the offence as defined under Section 7 of the POCSO Act. Section 29 of the POCSO Act clearly contemplates the initial presumption in favour of the guilt of the accused and the burden lies upon the accused to remove such presumption. 18. In the instant case, on overall consideration of the evidence on record, the offence under Section 8 of the POCSO Act has been proved beyond reasonable doubt and the appellant has failed to discharge his burden to disprove the case of the prosecution. Accordingly, the instant appeal stands dismissed being devoid of any merit. 16. It is informed at the Bar that the appellant is on bail. Accordingly, the instant appeal stands dismissed being devoid of any merit. 16. It is informed at the Bar that the appellant is on bail. As such, the appellant-Setu Ghosh is directed to surrender before the court of learned Special Judge, Unokoti Judicial District, Kailashahar within a period of 3(three) weeks from today to serve the remaining period of sentence. It is made clear that if the appellant-Setu Ghosh fails to surrender before the court, then, the learned Special Judge shall proceed in accordance with law to ensure the appellant Setu Ghosh to serve the remaining period of sentence as ordered by learned trial Judge.