Kamal Miah Sarkar vs State Of Tripura

[1] Heard Ms. S. Chakraborty, learned counsel appearing for the convict-appellant. Also heard Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.

[2] The convict-appellant has challenged the impugned judgment dated 11.08.2017 passed by the learned Special Judge, Sonamura, West Tripura, Judicial District (now Sepahijala District), in Special (POCSO) 02 of 2016, whereby and whereunder, he was convicted and sentenced to suffer RI for 7 (seven) years under Section-10 of the Protection of Children from Sexual Offences (POCSO for short) with default stipulation and he is further sentenced to suffer Rigorous Imprisonment of 1(one) year and pay a fine of Rs.1,000/-with default stipulation for commission of offence under Section-448 of the IPC.

[3] The Officer In-charge of Melaghar police station had launched the prosecution case on the basis of a complaint of Kulsom Bibi, the mother of the victim girl, wherein she stated that while she was out of home and her victim daughter was alone, at that time a beggar, appellant herein, entered into her house and demanded some support. But, having found her daughter alone, he entered into the room and put her daughter on a bed forcefully and raped her. Subsequently, the appellant was detained by the villagers.

[4] After registration of the case, the investigation was carried out which was culminated by submitting charge sheet. After receipt of the charge sheet, the learned Special Judge has framed the charge against the convict appellant under Section-376(2) (I) of IPC and Section-4 of the POCSO Act. To substantiate the charge, the prosecution has examined as many as 23 witnesses, including the doctor, who conducted the medical examination of the victim girl.

[5] The learned Special Judge after appreciation and assessment of evidence has found that the appellant guilty of committing offence under Section-10 of the POCSO Act, 2012 and accordingly, sentenced him to suffer RI for 7 years with default stipulation by the judgment and order dated 11.08.2017 passed in Special (POCSO) 02 of 2016. The appellant was also convicted under Section-448 of the IPC and was awarded 1 (one) year punishment along with fine of Rs.1,000/-.

[6] Being aggrieved by and dissatisfied with the said judgment of conviction and sentence, the convict appellant has preferred this appeal.

[7] I have meticulously scrutinized the evidence on record. The victim, who deposed before the learned Special Judge as PW-15, is the most vital witness in the instant case. Before her examination, learned Judge has tested the intelligence and capability of understanding for the purpose of giving statement. Learned Judge was satisfied with the intelligence of the victim girl.

[8] In her deposition the victim has stated that on the date of incident, in the morning, her mother went to Melaghar Hospital and her father went to Agartala and she was in her house along with her cousin brother, namely, Iman Hossain. At that time, one unknown person came to our house and demanded rice and accordingly, she gave him rice from their house. At that time, rain started to pour and for that, her brother went to the field for bringing their cows from the field. Suddenly, the said unknown person entered into their hut and forcibly pressed her mouth by his hand and also committed misdeed by laying her on the bed. The said witness failed to disclose the misdeed of the accused but, she started crying. Thereafter, the said unknown person left the house when the victim also ran to the house of her aunt, namely, Rahena Khatun and disclosed such incident to Rahena Khatun and her brother Iman Hossain. Subsequently, when her mother returned back home, she also told her about the incident. Thereafter, she was brought to the hospital where the doctor examined and treated her. In course of investigation, her statement was recorded by the Magistrate under Section-164(5) of the Cr. P.C. In cross, nothing material was surfaced.

[9] Next vital witness is PW-16, Mst. Rehana Khatun, she was the person who came and met the victim girl immediately after the occurrence. From her evidence it reveals that the victim girl disclosed the commission of misdeed to her. In my opinion, it is an evidence based on the well-entrenched doctrine of res gestae under Section-6 of the Evidence Act which forms the part of the same transaction.

[10] Next vital witness is the mother of the victim, PW-13. She has deposed before the learned trial court that while she was in Melaghar Hospital she received a phone call and she was asked to return back to home immediately and accordingly, she returned back. The victim girl narrated the entire incident to her mother, i.e., PW-13. So, it also forms the statements as part of the same transaction and it is an evidence of res gestae as stated above.

[11] This Court has taken note of the medical examination report of the doctor, PW-11, Dr. Priti Debbarma, who deposed before the trial court that on 20.06.2016 she was working as medical officer attached to Melaghar Hospital and on that day at about 3.30pm Abdul Taher and Kulshom Bibi brought the victim girl before her. She sent a radio message to the O/C Melaghar P.S. At about 3.30pm she clinically examined the girl. Thereafter, she prepared medical report and also obtained thumb impression of the victim girl. The doctor also put her signature on the medical report which marked as Exbt.10 and the signature is marked as Exbt.10/1.

[12] She has deposed that during examination she opined that vaginal penetration by an adult penis shape and size or like of that not to be ruled out. The final report which she prepared was taken into the evidence marked as Exbt.11 and her signature as Exbt.11/1. Her cross was declined.

[13] Dr. Subhankar Nath, PW-20 has deposed before the trial court that he has conducted the scientific tests of the wearing apparels of the victim girl. He opined in his report that he did not find any seminal stain/spermatozoa of human origin. Bloodstain was not detected. He also did not find any foreign particles.

[14] Most importantly, TI parade was also conducted in the instant case, which was held inside the Sonamura Sub-Jail premise. From the TI parade it is found that the victim girl had identified the suspected accused showing her finger pointing towards the accused.

[15] Sri Rahul Roy, PW-8 appeared before the witness box and has deposed that on 21.06.2016 when he was posted as Judicial Magistrate 1st Class, Sonamura, he was directed by the learned Special Judge to record the statement of the victim girl under Section-164(5) of the Cr.P.C. The report of TI Parade was marked as Exbt.7 and the signature of the Special Judge was marked as Exbt.7/1.

[16] During TI Parade, PW-8 asked the victim girl to identify the suspect amongst the persons, who were standing in the queue at the ratio of 9:1. Then, the victim girl identified the suspect by showing her finger pointing to Kamal Miah, the appellant herein, in presence of PW-8. He has stated that he prepared the memorandum of TI parade putting his signature. I find no discrepancy in conducting T.I. Parade.

[17] Other witnesses who adduced their evidence have stated that after hearing hue and cry, they rushed to the place of occurrence. On overall assessment of the aforesaid evidence, it is revealed that the appellant has committed offence of sexual assault as defined under Section-10 of the POCSO Act. But, the gravity of such assault was not as serious as would be evident from the report of the medical officer who examined and treated the victim girl. The Doctor opined that her private parts were found to be intact. There is no injury on the person of the victim girl.

[18] Considering all aspects of the matter, in my opinion, it would be justified if the sentence is reduced to 5 (five) years instead of 7(seven) years. Accordingly, the conviction and sentence as awarded by the learned Special Judge in Special (POCSO) 02 of 2016 dated 11.08.2017 is modified and reduced to 5 (five) years RI instead of 7(seven) years RI. Consequently, the appellant shall suffer RI for 5 years instead of 7 years. Other sentences as passed under Section-448 of the IPC and fine as imposed by the learned Special Judge shall remain unaltered.

[19] In the result, the instant appeal stands partly allowed as indicated above and thus, disposed of.