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2022 DIGILAW 384 (TRI)

Samar Orang v. State of Tripura

2022-09-28

ARINDAM LODH, T.AMARNATH GOUD

body2022
JUDGMENT T. Amarnath Goud, J. - This present appeal has been filed under Section 374 of Cr.P.C. against the impugned judgment and order dated 09.04.2019 passed by the learned Special Judge, Khowai, Tripura, in case No. Special(POCSO) No.13 of 2018, whereby and whereunder, the appellant has been convicted under Section 376(2)(i) of IPC and sentenced to suffer R.I. for 10 years and to pay a fine of Rs.10,000/-(ten thousand) with default stipulation. Further, the appellant has been convicted under Section 4 of POCSO Act and sentenced to suffer R.I. for 7 years and to pay a fine of Rs.5,000/-(five thousand), with default stipulation. 2. The fact of the case in brief is that on 02.03.2018 at about 14.45 hrs, the complainant, Bishaka Orang, W/o, Sri Rajendra Orang of East Ganki , under Khowai Police Station, Khowai Tripura lodged a written complaint with the officer-incharge of Khowai police station against Sri Samar Orang, the accused-appellant herein alleging inter alia that on 19.02.2018 at about 4.30 P.M., when the complainant was going to bring some water from a nearby tube well of their locality, she noticed that her daughter(name withheld) aged about 4(four) years was playing with other children of their locality in a nearby place of her house and the complainant also notice the accused-Samar Orang also present there beside her house. Subsequently, while the complainant returned home with water to the house, she did not find her daughter either on the spot she was playing or in her house. Thereafter the complainant along with her husband and villagers began to search for her daughter but her daughter could not be traced. Subsequently, on 20.02.2018, in the morning at about 7.00 hours, they got information from a tribal boy of their locality that a female baby is laying in the jungle in injured condition. Immediately, the complainant along with her husband and other villagers rushed to the spot and found that the daughter of the complainant was lying there in the jungle with severe injuries on her body and her private part. Thereafter, the victim girl was moved to Khowai District Hospital thereafter, she was referred to AGMC & GBP Hospital for better treatment. Immediately, the complainant along with her husband and other villagers rushed to the spot and found that the daughter of the complainant was lying there in the jungle with severe injuries on her body and her private part. Thereafter, the victim girl was moved to Khowai District Hospital thereafter, she was referred to AGMC & GBP Hospital for better treatment. While the victim-girl regained her sense during her treatment, she stated to her mother i.e. the complainant herein and others present there that the accused-person herein had taken her to the jungle on the plea that she will be taken to the uncle's house of the accused person herein. Thereafter, the accused-appellant, Samar Orang sexually assaulted her in the jungle laying her on the ground as the victim was also subjected to physical assault. She received scratch marks on her body and also received bleeding injuries on her person. 3. On received of the aforesaid written complaint, Officer-in-charge, Khowai Police Station registered Khowai Police Station case No.2018/KHW/033, dated 02.03.2018 under Section 376(2)(i) of IPC and under Section 4 of the POCSO Act, 2013 against the accused-Sri Samar Orang, the appellant herein. 4. After investigation, the investigating officer, Women Sub-Inspector Smti. Kamala Rani Murasingh being prime-facie satisfied submitted charge-sheet against the accused-appellant herein for committing offence punishable under Section 376(2)(i)/323 of IPC read with Section 4 of the POCSO Act, 2012. 5. Upon receipt of the charge sheet, learned Special Judge, Khowai, Tripura took cognizance of the offence. During the trial, the accused person pleaded not guilty and claimed to be tried. 6. To prove the charge framed against the appellant, the prosecution examined as many as 14 witnesses which are as follows:- i) P.W.-1 Smti. Bishakha Orang(Complainant). ii) P.W.-2, Shri Rajendra Orang(Father of the victim). iii) P.W.-3, Smti. Khumtia Debbarma(Staff Nurse). iv) P.W.-4, Smti. Manisha Ghosh(Women Constable). v) P.W.-5, Smt. Santamoy Debbarma(Staff of Khowai District, Hospital). vi) P.W.-6, Shri Sumit Debbarma(Radiographer of Khowai District Hospital. vii) P.W.7, Shri Manoj Debbarma(Seizure witness). viii) P.W.8, Shri Dananjoy Reang(Medical Superintendent, Khowai District Hospital. xi) P.W.-9, Shri Prasenjit Debbarma(independent witness). x) P.W.-10, Sri Krishna Tanti(independent witness). xi) P.W.-11, Sri Santosh Orang(independent witness). xii) P.W.-12, Smti. Kamala Rani Murasing(investigating officer). xiii) P.W.-13, Dr. Debasish Saha(Medical Officer of Khowai District Hospital). xiv) P.W.-14, Dr. Arnab Debbarma(Medical Officer of Khowai District Hospital). The prosecution also exhibited some documents. viii) P.W.8, Shri Dananjoy Reang(Medical Superintendent, Khowai District Hospital. xi) P.W.-9, Shri Prasenjit Debbarma(independent witness). x) P.W.-10, Sri Krishna Tanti(independent witness). xi) P.W.-11, Sri Santosh Orang(independent witness). xii) P.W.-12, Smti. Kamala Rani Murasing(investigating officer). xiii) P.W.-13, Dr. Debasish Saha(Medical Officer of Khowai District Hospital). xiv) P.W.-14, Dr. Arnab Debbarma(Medical Officer of Khowai District Hospital). The prosecution also exhibited some documents. After the closure of prosecution witnesses, the appellant herein was examined under Section 313 of Cr.P.C. to which he denied all the allegations brought against him by the prosecution and claimed that he is innocent. 7. After hearing the argument, the learned Court below found the appellant guilty under Section 376(2)(i) of IPC and under Section 4 of POCSO Act and sentenced the accused-appellant herein as mentioned herein-above. 8. Being aggrieved and dissatisfied with the impugned judgment and order dated 09.04.2019 passed by the learned Special Judge, Khowai, Tripura in Case No. Special(POCSO) No.13 of 2018, the appellant has preferred this present appeal. 9. Heard Mr. A. Acharjee, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent. 10. Mr. Acharjee, learned counsel appearing for the accused-appellant herein submits that the written complaint was lodged 13 days after the commission of the alleged incident. The presence and participation of the accused-appellant herein in the commission of the alleged offence is doubtful. The learned Court below has relied on the improved version of all the P.Ws and based on such improved version convicted and sentenced the accused-appellant herein. Even the depositions of some P.Ws did not corroborate with each other. There is no medical or forensic evidence to support that the accused-appellant herein has committed any act of sexual assault upon the victim girl and even there is no deposition of the victim. Stating thus, learned counsel prays to allow this instant appeal. 11. Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent opposed the said submission of the learned counsel appearing for the appellant herein and relying upon the deposition of P.W.-1, the complainant and mother of the victimgirl, P.W.-2, the father of the victim, and the medical evidence submitted that accused-appellant herein has committed sexual assault upon the victim girl. Stating this learned Addl. P.P. prayed to upheld the impugned judgment and order passed by the Court below. 12. Heard and perused the evidence on record. 13. Stating this learned Addl. P.P. prayed to upheld the impugned judgment and order passed by the Court below. 12. Heard and perused the evidence on record. 13. True it is that the victim-girl has sustained injuries and she was admitted to the hospital and a written complaint was lodged 13(thirteen) days after the incident. But there is no evidence to link the accused appellant herein with the crime. The swab test, blood test, and other medical tests of the victim girl were conducted long after the alleged incident. So there is no medical evidence to prove the link between the accused-appellant herein and the alleged crime committed. There is no doubt that the girl suffered injuries on her person but there is no piece of medical or forensic evidence to link the injuries of the victim with the accused person herein. There is no confessional statement of the victim. No question was put forth to the victim to ascertain how she reached the forest and how she got the injuries. Though P.W.-1, the complainant deposed that she saw the accused when her daughter was playing but there is no other corroborative evidence. So in absence of medical/forensic evidence, eye witness, and circumstantial evidence this Court feels that the prosecution has not been able to establish the guilt of the victim beyond the reasonable doubt. 14. In view of the above observation, this Court is of the opinion that the prosecution has not been able to prove the guilt of the accused-appellant herein both under Section 376(2)(i) of IPC and under Section 4 of the POCSO Act. Further, the accused herein has also been in imprisonment for more than 3 and 1/2 years. 15. Hence, the accused-appellant herein is acquitted of the charges leveled against him under Section 376(2)(i) of IPC and under Section 4 of the POCSO Act. Accordingly, the present appeal is allowed and judgment and order dated 09.04.2019 passed by Special Judge, Khowai, Tripura in case No. Special(POCSO) 12 of 2018 is set aside. The accused-appellant herein shall be released forthwith if not wanted in any other case. 16. Consequently, pending application(s), if any, also stand closed. Send down the LCRS.