Bipad Bhanjan Roy vs State Of Tripura

Heard Mr. Sankar Lodh, learned counsel appearing for the appellant as well as Mr. Samrat Ghosh, learned Additional Public Prosecutor appearing for the State-respondent.

This appeal is directed against the judgment and order of conviction and sentence dated 08.07.2019, passed in Case No. Special (POCSO) 37 of 2016 by the learned Special Judge (POCSO), West Tripura, Agartala, whereby and where-under the appellant was convicted and sentenced to suffer R.I. for 1 (one) year along with a fine of Rs.2,000/- with default stipulation for the offence under Section 354 of the Indian Penal Code (for short, IPC) and also to pay another fine of Rs.500/- with default stipulation for the offence under Section 448 of IPC.

The prosecution case, in brief is that, the victim girl was watching television at her room. At that time, the accused-appellant entered into her room and within a short while he gave bites on her two breasts around the nipple. Her mother called her from the tube-well. She went to the mother and narrated the incident when accused had left the house of the victim. The mother, PW-1 informed the matter to the father of the victim regarding the incident. The father came to the house. Both the parents had taken the victim girl to the Hapania Government Hospital. She was treated there. Thereafter, they came to the Police Station and lodged the FIR.

Being endorsed, the investigating officer carried out the investigation and after being satisfied with the prima facie case, submitted the charge-sheet.

Charge was framed by the learned Special Judge against the accused under Section 8 of the Protection of Children from Sexual Offences (for short, POCSO) Act, 2012 and Sections 354/448 of IPC to which the accused pleaded not guilty and claimed trial.

In course of trial, as many as 12 witnesses were examined by the prosecution including three Doctors and the investigating officers.

At the closure of recording evidence, the learned Special Judge examined the accused under Section 313 of CrPC when he was noticed about all the incriminating evidences as surfaced against him to which he denied all the allegations levelled against him by the prosecution witnesses and claimed that those allegations were false.

Learned Special Judge after hearing the arguments advanced by the learned counsels appearing for the parties recorded the findings of guilt against the accused-appellant and accordingly convicted and sentenced the accused-appellant as stated here-in-above.

Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant has preferred the instant appeal challenging his conviction and sentence as aforestated.

Mr. Lodh, learned counsel appearing for the appellant has also tried to persuade the court over some discrepancies here and there even in the statements of PW-1, the informant; PW-2, the victim and PW-3, the father of the victim.

On the other hand, Mr. S. Ghosh, learned Addl. Public Prosecutor submits that the accused caused bruises around the breasts of the victim girl have been proved beyond reasonable doubt. Learned Additional P.P. has submitted that the finding of PW-4, the Doctor, that those bruises were caused by giving human bites.

Having considered the rival submissions of the learned counsels appearing for the parties to the lis, I have surveyed the evidence on record.

PW-1, the informant in her examination-in-chief has deposed that while she was washing utensils in the tube-well of the house, her daughter, i.e. the victim girl was in the room watching TV. At that time the accused entered into the room and gave bites around her breasts. She informed the matter to her husband over phone. Her husband came to the house and they took her daughter to the Hapania Hospital where she was examined. Doctor detected some bruises around the nipples of the breasts of the victim girl. Thereafter, they came to the PS where she lodged the complaint written by PW-6, Nirmal Majumder. Being read over and explained the contents of the written ejahar to the informant, she being satisfied puts her signature over the complaint. PW-1 further stated that her daughter was taken to the Magistrate by the police. Magistrate recorded her statement under Section 164(5) of CrPC. Police also interrogated her and her husband and also recorded the statements of the victim girl under Section 161 of CrPC.

The victim girl was examined as PW-2. Before recording her statement, the learned Judge has tested her intelligence and being satisfied about her ability and intelligence to give evidence, the learned Judge proceeded to record her evidence. During deposition, the victim girl has stated that while she was in a room and watching TV, the accused-appellant who happens to be the uncle, entered into the room and after a short while he caused bite on her breasts around the nipple. At that time, her mother was washing utensils in the tube-well of the house, and in that meanwhile, mother called her. She went to the mother, PW-1 and narrated the incident. Immediately after knowing about the incident, the mother (PW-1) informed the same to the father of the victim. She was taken to the hospital by her parents where Doctors examined her.

PW-3 the father of the victim also deposed in the same tune. PW-4 is Dr. Pradipta Narayan Chowdhury who examined the girl on 17.06.2016 i.e. after three days of the incident. On examination, PW-4 detected that those bruises were caused by human bite.

PW-8, Dr. Kalyan Brata De deposed that he examined the victim on 15.06.2016 i.e. on the date of incident. He found bruises marks around both sides of areola (surrounding area of nipple) of the victim girl, and he opined that those bruises were caused by hard object.

The victim was also examined by PW-12 i.e. Dr. Nibedita Talapatra on 15.06.2016 i.e. on the date of incident. She also detected some bruise marks surrounding the nipples of the breasts of the victim.

The investigating officer collected the birth certificate of the victim girl but it was returned to her mother after some days. The birth certificate was not produced at the time of trial before the learned Special Judge. The other witnesses are not so material to be discussed and will not assist the prosecution in either way.

On close scrutiny of the evidence and considering the submission of the learned counsels appearing for the appellant, in my opinion, the oral testimony of the victim as well as PWs 1 and 3 are consistent with the bite marks around the nipples of both the breasts of the victim. It has also been proved that the accused was in the room when the mother PW-1 was washing utensils at the tube-well of the house. The bone of contention of Mr. Lodh, learned counsel for the appellant is that the two Doctors, PW-8 and PW-12 who examined the victim girl on 15.06.2016 i.e. on the date of incident itself did not tell specifically that those bruises were caused by biting and the opinion of the another Doctor (PW-4) should not be believed.

I find no merit in the said submission of learned counsel for the appellant. All the three Doctors who examined the victim girl expressed their firm opinion regarding detection of bruises. Two Doctors opined that those bruises were caused by hard object. Only one Doctor i.e. PW-4, Pradipta Narayan Chowdhury detected bruises as human bite marks. So, in my opinion, ultimate finding should be that those bruises were caused by biting teeth cannot be said to be soft objects. Mr. Lodh, learned counsel has submitted that neither PW-1 nor PWs 2 and 3 had stated that on 17.06.2016 they went to PW-4 for treatment at Hapania Hospital. In my opinion, this omission will not defeat the veracity and consistent oral testimony of the three witnesses, particularly, PW-1, PW-2 and the victim girl. The bruise marks were confirmed by all the Doctors and one Doctor opined that those were the human bite marks. So, the injury caused by bruises as suffered by the victim is consistent with the opinion of the Doctors. I find no discrepancy in the opinion of the Doctors which supports the bruise marks were caused by biting. Accordingly, I find no material to interfere with the judgment of conviction and sentence as recorded by learned Special Judge.

The appeal, accordingly, stands dismissed. It is submitted that the accused-appellant is on bail. So, his bail bond is cancelled. The Surety of the convict-appellant is directed to produce him before the learned Special Judge within seven days, else, the learned Special Judge shall proceed in accordance with law.

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