Arabinda Debnath vs State Of Tripura

Heard Mr. S. Bhattacharjee, learned Legal Aid Counsel appearing for the appellant as well as Mr. S. Ghosh, learned Additional PP appearing for the State-respondent.

The judgment of conviction and order of sentence dated 20.04.2018 passed by the learned Special Judge, Gomati Judicial District, Udaipur in connection case No. Special (POCSO) 11 of 2017 is under challenge before this court. The appellant was convicted under Section 10 of the POCSO Act read with Section 354 of the IPC and sentenced to undergo rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 5,000/- with default stipulation. The appellant was further sentenced to undergo rigorous imprisonment for 6(six) months for committing offence punishable under Section 354 of the IPC, wherein both the sentences shall run concurrently.

The prosecution case was rooted on the basis of a complaint lodged by one Smt. Tandra Roy (Das) inter alia stating that, the appellant was known to her and he used to visit her house off and on. One day she went outside her house when she was asked to return back to her house immediately for the reason that her daughter's condition was precarious. The complainant had rushed to the house and her minor daughter told her that the appellant had forcibly hugged her and pulled her with ill intention and tried to lay her on the bed. After hearing the hue and cry of her daughter, Amita Shome saved her daughter from the clutch of the appellant and thereafter the appellant had fled away.

The Officer-in-Charge of RK Pur police station had registered a case against the appellant vide RK Pur PS case No. 30 of 2017 under Section 354 of the IPC read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, POCSO Act). The statement of the witnesses was recorded and, finally the investigating officer submitted charge sheet. Being committed, the learned Special Judge, Gomati Judicial District framed charge against the appellant under Section 354 IPC and Section 10 of the POCSO Act, to which the appellant pleaded not guilty and claimed to be tried.

To substantiate the charges, the prosecution had examined as many as 9 witnesses. After conclusion of recording of evidence, the appellant was noticed of the incriminating evidences found against him, as adduced by the prosecution witnesses. The appellant denied all the imputations levelled against him but, did not adduce any evidence. After perusal of the evidences and having heard learned counsel appearing for the parties to the lis, the learned Special Judge has convicted and sentenced the appellant, as aforestated. Hence, this appeal before this court.

Mr. S. Bhattacharjee, learned Legal Aid Counsel has submitted that the age of the prosecutrix has not been proved. None of the parents had divulged the date of birth of the prosecutrix. The school certificate though was produced by the Headmaster but, at the time of adducing evidence, he could not say under whose instruction or information, the said date of birth was registered in the school Register. As such, it cannot be said that the age of the prosecutrix has been proved beyond reasonable doubt. Mr. Bhattacharjee has further submitted that since the age of the prosecutrix has not been proved, the appellant cannot be convicted under any of the provisions of the POCSO Act. Mr. Bhattacharjee, has further contended that there is no eye witness to the incident and the conviction cannot sustain on the basis of the statement of the prosecutrix alone.

Mr. Ghosh, learned Additional PP has submitted that the charges levelled against the appellant has been proved beyond reasonable doubt. Mr. Ghosh has defended the judgment of the learned Special Judge. He has submitted that the statement of the prosecutrix to the effect that the appellant had forcibly tried to disrobe her and laid her on the cot and touched her breast, has been corroborated by other neighbouring witnesses who immediately came to the spot and the victim had disclosed the commission of offence to those witnesses.

On the basis of the aforesaid submission, I have perused the evidences and materials on record.

At the outset, I have taken note of the evidence of the prosecutrix, who deposed as PW-2. In her examination-in-chief, she has stated thus:

"About 3 months ago one day at about 7 pm in the evening my father went to market and my mother went to her tailoring shop at Udaipur and I was alone in my house and said Arabinda Debnath was sleeping in our room. Actually in our bed room there were two cot and in one cot I along with my parents would sleep and in another cot said Arabinda Debnath would sleep. However, at that moment I felt hungry and went to the kitchen to take tiffin and thereafter suddenly Arabinda Debnath coming into the kitchen embraced me and took me to the cot and laid me there. Thereafter, he sat on my back side and also pressed my breast. Then out of fear somehow I released myself and took shelter beneath the TV set. Then he again brought me out and tried to remove my pant. Then I raised cry and one of my neighbor namely Anita Som came there and saved me. Thereafter, Anita Som took me to her house and informed the matter to my mother. Then my mother came and I narrated the incident to my mother and thereafter my father also came".

In view of this statement, I have perused the evidence of Anita Som, who deposed as PW-9. She in her examination-in-chief deposed that on the fateful evening at about 6.30 pm, she heard cry of the prosecutrix and went to the nearby room and found through the hole of the tin wall of the room that the appellant was asking the prosecutrix not to cry and keep quiet and to come near him to which the prosecutrix was refusing and was telling that she would not come and she would tell to her mother. Then on being insisted by the appellant she went under the table of the TV. From there also the appellant brought her up on the cot and was about to commit sexual intercourse with her and at that moment she entered the room pushing open the door and the appellant became shaken and perplexed on seeing her. Thereafter, the prosecutrix hugged her and asked to save her. At that instance, the prosecutrix narrated the incident to her. She also called the mother of the prosecutrix.

Next, I have perused the evidence of the informant, mother, who deposed as PW-1. She deposed that on that date, she went outside when Amita Shom (PW-9) had called her to come back immediately because her daughter was in precarious condition. After hearing, she came to the house and Amita Shome narrated the entire incident to her. Her daughter also narrated the same incident to her.

All the neighbouring witnesses who rushed to the spot immediately after the incident have deposed in the similar tune.

On close scrutiny of the evidences on record, I find force in the submission of learned Counsel appearing on behalf of the appellant that the age of the prosecutrix has not been proved beyond reasonable doubt. However, it will not help the learned Counsel for the appellant to avoid conviction because the offence committed by the appellant by applying criminal force upon the prosecutrix with an intention to disrobe her has been proved beyond reasonable doubt. The statement of PW-2, the prosecutrix, has been substantially corroborated by PW-9 and other witnesses including her parents. PW-9, is the evidence of res gestae under Section 6 of the Evidence Act. There is no reason to disbelieve the statement made by the prosecutrix and PW-9.

Since, the age of the prosecutrix has not been proved that she was below 18 years at the time of commission of the offence, the appellant cannot be convicted under any of the provisions of the POCSO Act. However, from the evidences, it has been emerged that the appellant having found the prosecutrix alone in the room used criminal force, touched her breast, laid her on the cot and pulled her wearing apparel with a clear intention to outrage her modesty and also to get sexual favours.

The evidences, as curled out here-in-above, clearly establish the ingredients of Section 354, 354-A and 354-B of the IPC. Section 354 prescribes punishment which shall not be less than one year but which may extend to five years. Section 354-A prescribes punishment which may extend to three years, or with fine, or with both. Section 354-B prescribes punishment which shall not be less than three years but which may extend to seven years, and shall be liable to fine.

As I have said earlier, the evidences in this case, as emerged, have attracted the provision of the offence punishable under Sections 354, 354-A and 354-B of the IPC. As such, the appellant is liable to be convicted under Sections 354, 354-A and 354-B of the IPC in exercise of the power conferred under Section 386 read with Section 222 of the Cr.P.c.

Both the learned counsel appearing for the parties to the lis, have submitted that the appellant was arrested on 01.06.2017, and since that date the appellant has been in jail custody. The order sheets of the trial court also reveal that the appellant was offered bail on 13.06.2017 but, he could not furnish any bail bond. As such, he had been in custody since the date of his arrest i.e. 01.06.2017.

I have considered an important aspect that the appellant was used to share the same room where the prosecutrix along with her parents used to reside. The prosecutrix never lodged any complaint against the appellant earlier to the said incident. There is no criminal antecedent against the appellant. Considering this aspect and also keeping in mind the extent and gravity of the offence, the appellant has been sentenced to suffer imprisonment for the period, he has already undergone. Mentionably, the appellant has already suffered over three years of imprisonment. Accordingly, the period of imprisonment, the appellant has already suffered is set off and the appellant is set at liberty. The judgment of conviction and sentence dated 20.04.2018 passed by the learned Special Judge, Gomati Judicial District, Udaipur in connection case No. Special (POCSO) 11 of 2017 is modified to the extent as indicated above.

The instant appeal stands allowed in part, in the above terms. Issue the release warrant forthwith.

Send down the LCRs.