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2022 DIGILAW 310 (TRI)

Maman Miah @ Idhar Ali v. State of Tripura

2022-07-27

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT Amarnath Goud, J. - Heard Mr. A. Acharjee, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Additional PP appearing on behalf of the respondent-State. 2. This appeal arises out of the judgment of conviction and order of sentence dated 02.09.2021 passed in connection with case No. Special 12 of 2019 (POCSO) by the learned Special Judge, Gomati Judicial District, Udaipur, whereby and whereunder the appellant has been convicted under Section 6 of the POCSO Act and sentenced to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs. 5,000/- with default stipulation and, further sentenced him to suffer rigorous imprisonment for one year for the offence committed under section 448 of the IPC. 3. On 25.04.2019, as per the case of the prosecution, the daughter (name withheld) of the informant, aged 8 years, when was alone in her house, she was being raped by the appellant and was also threatened by the appellant not to disclose the incident to anybody. At the relevant point of time, the complainant was in her work in the field. She got the information over phone from her son that the appellant had embraced her daughter and as soon as he came to the hut, the appellant had fled away through window. After coming home, when she asked her daughter, she also told that the appellant had embraced her and committed rape upon her. Therefore, a complaint came to be lodged with the police. 4. The said complaint was registered as Birganj PS case no. 28 of 2019 under Sections 506 of the IPC and section 4 of the POCSO Act. The matter was investigated by the investigating officer, and after completion of investigation submitted charge-sheet against the appellant under Sections 448/376(2)(i)/506 of the IPC and section 4 of the POCSO Act. At the commencement of trial, the learned Special Judge had framed charge against the appellant to which he pleaded not guilty and claimed to be tried. 5. During trial, the prosecution to establish the charge had adduced 22 witnesses. After closure of recording evidences, the appellant was examined under Section 313 Cr.P.C. wherein he denied all the allegations leveled against him by the prosecution witnesses. After hearing arguments and on examining the evidences and materials on record, the learned Special Judge had convicted and sentenced the appellant for committing offence, as aforestated. After closure of recording evidences, the appellant was examined under Section 313 Cr.P.C. wherein he denied all the allegations leveled against him by the prosecution witnesses. After hearing arguments and on examining the evidences and materials on record, the learned Special Judge had convicted and sentenced the appellant for committing offence, as aforestated. Hence, this appeal before this court. 6. Mr. Acharjee, learned counsel for the appellant has submitted that the prosecution has miserably failed to establish the charges leveled against the convict-appellant. Mr. Acharjee, learned counsel has urged that the FIR was lodged belatedly and that, itself, creates a doubt in the story put forth by the prosecution. He urged that the version given by the prosecutrix is not at all believable and has no credibility. Moreover, there is no independent witness in respect of any of the details that she had stated. It is, further, his case that the prosecution case does not get any support from the medical evidence, and therefore also, a serious error is committed by the trial Court in believing the story of the prosecution. He has urged that only on the basis of conjuncture and surmise, the judgment and order of conviction has been passed. 7. On the other hand, Mr. S. Debnath, learned Additional PP has supported the findings of the learned trial court while convicting the accused. Mr. Datta, has also submitted that if the evidences of prosecution witnesses are read conjointly it could safely be presumed that the convict appellant had committed the alleged offence. Hence, learned PP has submitted to maintain the findings of the learned trial court. 8. We have considered the submissions for learned counsel appearing for the parties. We have perused the evidences and materials on record and the judgment passed by the learned Special Judge. For purpose of appreciating the submissions of learned counsel, it would be pertinent for us to revisit the evidences let in by the prosecution witnesses. PW 1, is the complainant and mother of the victim-girl (PW-2). She deposed that on 25.04.2019 at 7 a.m. she sent her daughter to school and thereafter she went to work. At 10.00 a.m. her son, Sarif Miah (PW-3) informed her over phone that Maman Miah (the appellant herein) had done something wrong for which PW-2 was crying. After returning home, she found her daughter was standing after taking bath. She deposed that on 25.04.2019 at 7 a.m. she sent her daughter to school and thereafter she went to work. At 10.00 a.m. her son, Sarif Miah (PW-3) informed her over phone that Maman Miah (the appellant herein) had done something wrong for which PW-2 was crying. After returning home, she found her daughter was standing after taking bath. On query, her daughter told that when she returned from school, the appellant shut the door of the room and after pressing her mouth committed rape upon her. She further deposed that she informed the matter to the local elderly people. Her statement could not be shaken by the defence. PW-2, is the victim-girl, aged about 8 years. Before deposing, her credibility was tested by the learned trial court. On her deposition, she stated that one day when she came from school at 10 a.m. and entered into her room, the appellant also entered into the room. She also deposed that at that time none was there in her house. Thereafter, the appellant had pressed her mouth with hand and committed rape upon her by opening her wearing apparels. She further deposed that, at that time her brother and one Ripu didi (PW-8) came but the appellant had fled away through window. She, thereafter, had narrated the incident to PW-8 and when her mother returned, she also had narrated the incident to her. PW-2 also was produced before the learned Magistrate to record her statement under Section 164(5) Cr.P.C.. PW-2 was also produced before the doctor for her medical examination. Her deposition also could not be shaken by the defence. PW-3, Sarif Miah, is the elder brother of the victim and also is one of the eye witnesses. He deposed that on 25.04.2019 at 9.30 a.m. when he went to take bath, PW-8 called him and he came and opened the door and found the appellant jumped out through the window. He also deposed that PW-8 was with him at that time. He further deposed that thereafter the victim narrated that the appellant had pressed her mouth and committed rape upon her and threatened not to disclose the matter to anybody. Thereafter, PW-3 had narrated the incident to his mother over phone who thereafter returned to home. PW-4, Hasena Begam deposed that she came to know from Sabita Boudi that the appellant had committed rape upon PW-2. Thereafter, PW-3 had narrated the incident to his mother over phone who thereafter returned to home. PW-4, Hasena Begam deposed that she came to know from Sabita Boudi that the appellant had committed rape upon PW-2. PW-5, Bahar Miah, is the father of the victim who on the day of incident was at Chennai. He deposed that he was informed by PW-1 that the appellant had committed rape upon her daughter. PW-6, Smt. Kajal Rani Reang, is a seizure witness. PW-7, Rangu Miah is the grandfather of the victim. He deposed that one day at about 10.30 am Ripa (PW-8) and Sarif (PW-3) informed him that the appellant had committed rape upon the victim (PW-2). PW-8, Miss Ripa Begam is another eye witness who was declared hostile by the prosecution as she has deviated from her statement recorded under Section 161 Cr.P.C. since the appellant is her maternal uncle. Her attention was drawn to her previous statement recorded under Section 161 Cr.P.C. wherein she had stated that on 25.04.2019 when she came to the house of the victim to take bath and when she came infront of the door of the victim, she found the appellant to commit rape upon the victim. She then called Sarif (PW-3) and entered into the room of the victim and at that time the appellant had fled away. PW-9, Sofia Bibi, is a hearsay witness. PW-10, Surja Meher Bibi is the grandmother of the victim who has stated that at the relevant point of time she was not present in the house. PW-11, Suman Bhowmik, Constable of police is a seizure witness. PW-12, Arjun Sutradhar, staff-nurse of hospital is a seizure witness. PW-13, Manik Lal Sarkar, contingent worker of hospital is also a seizure witness. PW-14, Krishna Bhattacharjee, Teacher-in-Charge of Sukanta Colony JB School issued a school certificate in favour of the victim as per requisition of the I.O. of the case. PW-15, Swapan Debnath, Assistant Teacher of Sukanta Colony JB School is another seizure witness. PW-16, Dr. Mistu Das, Medical Officer of Amarpur Sub Divisional Hospital had examined the victim and during examination she found that her hymen was torn and the tear was fresh and there was no other injury on her body. She opined that her vagina was penetrated by penis or penis like object. PW-17, Dr. PW-16, Dr. Mistu Das, Medical Officer of Amarpur Sub Divisional Hospital had examined the victim and during examination she found that her hymen was torn and the tear was fresh and there was no other injury on her body. She opined that her vagina was penetrated by penis or penis like object. PW-17, Dr. Ideb Paul is the Medical Officer, Amarpur Sub Divisional Hospital who conducted potency test of the appellant and opined that he is capable of performing sexual intercourse. PW-18, Smt. Tanusree Debnath is the learned Magistrate who recorded the statement of the victim and her mother under Section 164(5) Cr.P.C. PW-19, Dr. Dhruba Das is the Medical Officer who collected blood sample of the appellant. PW-20, Dr. Subhankar Nath is the Deputy Director, Chemical Examiner at SFSL, Tripura. PW-21, Dr. Nani Gopal Das, is the Medical Officer who conducted ossification test of the victim. PW-22, WSI Sumitra Kapali is the I/O of the case who had submitted the charge-sheet after completion of her investigation. 9. As can be noticed from the detailed appreciation of the deposition of various witnesses that right from the beginning, in the FIR, the details have been provided, which reveal that when the victim returned from school on the relevant date and time she was being raped by the appellant by pressing her mouth. There is no discrepancy between the complaint lodged by PW-1 and her evidence before the learned trial court. The defence also could not shake her evidence. The version of PW-3 before the learned trial court has been corroborated by the version of PW-8 recorded by the I.O. under Section 161 Cr.P.C.. Further, medical evidence also proves that there was penetrative sexual offence upon the victim girl. PW-3 is the eye witness to the alleged incident and his evidence is in total corroboration with the evidence of the victim (PW-2) with that of the statement of PW-8 recorded under Section 161 Cr.P.C. Nothing material has come out from the cross-examination of PW-3 so as to disbelieve the prosecution story. PW-3 is the eye witness to the alleged incident and his evidence is in total corroboration with the evidence of the victim (PW-2) with that of the statement of PW-8 recorded under Section 161 Cr.P.C. Nothing material has come out from the cross-examination of PW-3 so as to disbelieve the prosecution story. PW-8 is also one of the eye witnesses to the alleged incident but, she has been declared hostile by the prosecution since the appellant is her maternal uncle but, she was confronted with her statement recorded by the I.O. under Section 161 Cr.P.C. which was subsequently confirmed by the I.O. The statement of PW-8 recorded by the I.O. under Section 161 Cr.P.C. is in total corroboration with the statement of the victim and PW-3. 10. The evidence of the victim girl, if taken conjointly, with the medical evidence, it would clearly establish that she was sexually assaulted by the appellant by pressing her mouth. Though the victim was cross-examined by the defence but, her evidence cannot be shaken by any means. The evidence of the victim is in total corroboration with the statement she had given before the learned Magistrate under Section 164(5) Cr.P.C. wherein she has categorically mentioned that she was forcibly raped by the appellant. Furthermore, the medical evidence proves that the hymen of the victim-girl was torn and the tear was fresh and no other injury was there in her body. PW-16, clearly opined in her report that the vagina of the victim-girl was penetrated by penis or penis like object. 11. Further, the statement of the victim-girl came to be recorded under Section 164(5) of Cr.P.C., which, of course, has a corroborative value and the said medical document has been duly proved. It is also a matter of record that the learned Magistrate, who had recorded the statement of the victim girl under Section 164 (5) of the Code, has been examined. 12. It is extremely shocking that, in the case on hand, this act was done by the person, who is addressed as 'Kaku' by the victim-girl, belonging from the same locality. Cumulative circumstances with oral as well as the documentary evidences that had been brought on record, led the trial Court to convict the appellant both under the provisions of the IPC and under the POCSO Act. Cumulative circumstances with oral as well as the documentary evidences that had been brought on record, led the trial Court to convict the appellant both under the provisions of the IPC and under the POCSO Act. The trial Court does not appear to have committed any error so as to warrant interference by this Court. Moreover, we find that the statements of PW-2 (the victim), PW-1 (the informant), PW-3 (eye witness) and PW-8 (eye witness) not only corroborate each other and also are consistent with first information report and also supported by the medical evidence. 13. Thus, the conviction of the appellant under section 448 of the Indian Penal Code and under Section 6 of the POCSO Act is confirmed and the punishment and the fine inflicted by the trial Court are not being interfered with. 14. Resultantly, this appeal fails and is accordingly dismissed. The judgment and order of conviction rendered by the learned Special Judge (POCSO) dated 02.09.2021 in Special (POCSO) Case No. 12 of 2019 stands confirmed. Send down the LCRs. Pending application(s), if any, also stands disposed.