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2022 DIGILAW 270 (TRI)

Jakir Miah Alias Tanu v. State of Tripura

2022-06-21

ARINDAM LODH

body2022
JUDGMENT 1. The present appeal is directed against the judgment and order of conviction and sentence dated 06.03.2021, passed by learned Special Judge, South Tripura, Belonia in Case No. Special (POCSO) 4 of 2020 whereby and whereunder the accused-appellant had been convicted for committing offence punishable under Section 447 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for one month along with a fine of Rs.500/- (Rupees five hundred) for the said offence with default stipulation. The accused-appellant had also been convicted for committing offence punishable under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and sentenced him to suffer Rigorous Imprisonment for 3(three) years along with a fine of Rs.2,000/- (Rupees two thousand) for the said offence with default stipulation. 2. Heard Mr. S. Bhattacharjee, learned counsel appearing for the accused-appellant. Also heard Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent. 3. Prosecution case, as projected by learned Special Judge is narrated here-in-below:- 'The prosecution agency came into motion on filling of an ejahar made by the mother of the victim on 13.11.2019 to the effect that, on that day i.e. on 13.11.2019 at about 8 a.m. the informant went to the house of one Sri Man Kumar Gurung at Krishnapur to attend Bandhan Bank meeting and brother of the victim went to private tuition at Ranjanagar. At about 8.15 a.m. the victim daughter of the informant arrived at home after completion of her private tuition at Rajnagar and since about 8.15 a.m. while the victim was alone in her house at that time accused Jakir Miah @ Tanu entered into the house of the informant and asked her for providing drinking water. Accordingly, the victim gave a glass of water to the accused. Thereafter, the accused again sought for another glass of water and while the victim proceeded for bringing another glass of water from the kitchen at that time accused hugged her from behind. The victim cried loudly and local people arrived at the spot and detained the accused. The Officer in charge of P.R.Bari police station received the ejahar and registered P.R. Bari PS case no.2019/PRB/111 under section 447 and 354 of the Indian Penal Code and section 8 of POCSO Act and SI Suman Singha was entrusted to investigate the case. The victim cried loudly and local people arrived at the spot and detained the accused. The Officer in charge of P.R.Bari police station received the ejahar and registered P.R. Bari PS case no.2019/PRB/111 under section 447 and 354 of the Indian Penal Code and section 8 of POCSO Act and SI Suman Singha was entrusted to investigate the case. Accordingly, SI Suman Singha took up the task of investigation and after completion of investigation said SI Suman Singha submitted charge sheet vide C/S No.1 dated 11.01.2020 against accused person namely Jakir Miah @ Tanu under section 447 and 354 of the Indian Penal Code and section 8 of POCSO Act.' 4. Having received the charge-sheet, learned court below framed charges under Sections 447/354 of IPC and Section 8 of POCSO Act against the accused. The contents of the charges were read over and explained to the accused to which he pleaded not guilty and desired to stand trial. 5. To establish the charges, the prosecution had examined as many as 7 witnesses including the victim [PW-2, name withheld]. 6. After closure of recording evidence on behalf of the prosecution, the accused-appellant was examined under Section 313(1)(b) of CrPC in respect to the incriminating circumstances surfaced against him. The accused denied all the allegations and he claimed that he has been falsely implicated in connection with the case. However, the accused declined to adduce any evidence on his behalf. 7. Having heard the learned counsels appearing for the parties and on consideration of the evidences on record, learned Special Judge held that the prosecution had been able to substantiate the charges levelled against the accused-appellant beyond reasonable doubt and convicted and sentenced the accused-appellant as aforestated. 8. Being aggrieved by and dissatisfied with the said conviction and sentence, the appellant has preferred the instant appeal before this court. 9. Mr. Bhattacharjee, learned counsel appearing for the convict-appellant has strongly argued that the prosecution has miserably failed to establish the charges levelled against the appellant. There was communal disturbance in the area where the offence was allegedly committed and the present case was the result of that communal tension. Furthermore, according to learned counsel appearing on behalf of the convict-appellant, the evidence of the victim (PW-2) is full of contradiction and the evidences of the victim and her mother are not trustworthy and no credibility should be given to their evidences. 10. Furthermore, according to learned counsel appearing on behalf of the convict-appellant, the evidence of the victim (PW-2) is full of contradiction and the evidences of the victim and her mother are not trustworthy and no credibility should be given to their evidences. 10. On the other hand, Mr. Debnath, learned Addl. P.P. has strongly defended the conviction and sentence as recorded by learned Special Judge. 11. In view of the submissions advanced by the learned counsels appearing for the parties, I have perused the evidences on record, particularly the evidence of PW-2, the victim. 12. Learned Special Judge while deciding the case had formulated the following points for decision:- (a) Whether accused Jakir Miah @ Tanu on 13.11.2019 at about 0810 hours at Krishnapur, Madhyapara under P.R. Bari P.S. committed criminal trespass by entering into the house of the informant with intent to outrage the modesty of her minor daughter? (b) Whether on the aforesaid date, time and place accused Jakir Miah @ Tanu used criminal force to the victim girl (name is withheld) intending to outrage her modesty? (c) Whether on the aforesaid date, time and place accused Jakir Miah @ Tanu committed sexual assault upon the victim child by hugging her with sexual intent involving physical contact without penetration? 13. To re-appreciate the evidences brought on record, at the outset, I have meticulously scrutinized the statements of the victim who deposed before the learned trial court as PW-2. It is noticed that PW-2 has categorically stated that on 13.11.2019, in the morning time, when she was alone in the house, the accused-appellant entered into her house and demanded a glass of water. On such request, she had offered a glass of water to the accused-appellant. Thereafter, the accused-appellant again demanded another glass of water. At that point of time, the accused-appellant had followed her and the accused-appellant embraced her from behind with sexual intent. She raised alarm seeing the accused-appellant and became faint. Many people had assembled there. It has also categorically stated that for a moment she became unconscious. PW-2 in her examination-in-chief has further stated that she was brought before a Magistrate who recorded her statement under Section 164(5) of CrPC [Exbt.4]. During her cross-examination, the defence has only made a suggestion that the accused did not enter into her kitchen following her. It has also categorically stated that for a moment she became unconscious. PW-2 in her examination-in-chief has further stated that she was brought before a Magistrate who recorded her statement under Section 164(5) of CrPC [Exbt.4]. During her cross-examination, the defence has only made a suggestion that the accused did not enter into her kitchen following her. At this juncture, I deem it fit to peruse the statements of the victim girl which was recorded under Section 164(5) of CrPC before the Magistrate. I find that PW-2 has totally corroborated the statements which she had made before the Magistrate. I find that the statements made under Section 164(5) Cr.P.C are recapitulated in her examination-in-chief before the court. 14. PW-7, the investigating officer in his examination-in-chief has stated that having received the information of the incident he rushed to the spot and found the accused-appellant in injured condition and arranged hospitalization of the accused-appellant. Now, the question remains to be answered whether the victim at the time of occurrence was minor or not. The prosecution has brought on record the original birth certificate issued by the Registrar, Births and Deaths. No objection had been raised by the defence when the said birth certificate [Exbt.2] had been admitted on record. As such Exbt. 2 is admissible in evidence as per Section 35 of the Evidence Act. More so, the parents of the victim i.e. PW-1 and PW-3 who have categorically stated in their examination-in-chief that at the time of occurrence PW-2 was minor as she was aged about 17 years. In view of this, I find no error in the findings of the learned Special Judge that at the time of occurrence, PW-2 was below 18(eighteen) years. There is no ground to disbelieve the statements of the PW-2 that, in the morning of 13.11.2019, the accused-appellant had entered into the house of the victim and demanded a glass of water which was given to him. For the second time, the accused-appellant demanded another glass of water and at that time, when the victim girl entered into the kitchen to bring water for the accused-appellant, the accused-appellant had followed her and entering into the kitchen he hugged her from behind. No material contradictions are tried to be brought by the prosecution during her cross-examination. For the second time, the accused-appellant demanded another glass of water and at that time, when the victim girl entered into the kitchen to bring water for the accused-appellant, the accused-appellant had followed her and entering into the kitchen he hugged her from behind. No material contradictions are tried to be brought by the prosecution during her cross-examination. The victim girl was closed to the incident and immediately the other prosecution witnesses arrived at the place of occurrence including her uncle, PW-4. The mother, PW-1 lodged the complaint. I find no discrepancy in the statement of PW-1. 15. For the aforesaid reasons, I do not find any ground to interfere with the findings returned by learned Special Judge in convicting and sentencing the appellant. 16. Accordingly, the judgment and order of conviction and sentence dated 06.03.2021, passed by learned Special Judge, South Tripura, Belonia are hereby confirmed. The appellant, Jakir Miah alias Tanu shall serve out the sentence as ordered by learned Special Judge in the judgment and order of conviction and sentence dated 06.03.2021. It is informed that the appellant is on bail. The appellant is directed to surrender before the learned Special Judge, South Tripura, Belonia within 7(Seven) days from today failing which, the learned Special Judge shall proceed in accordance with law to ensure the surrender of the convict-appellant to serve out the remaining period of sentence. 17. With the aforesaid direction and observation, the instant appeal stands dismissed. Send down the LCRs forthwith.