Prafulla Dutta vs State Of Tripura

Heard Mr. S. Kar Bhowmik, learned counsel appearing for the appellant. Also heard Mr. Ratan Datta, learned Public Prosecutor appearing for the State-respondent.

This appeal has been preferred by the convict-appellant, namely, Prafulla Datta challenging the judgment and order of conviction and sentence dated 15.02.2019, passed by the learned Special Judge, Khowai, Tripura in case No. Special (POCSO) 11 of 2018.

FIR No. Khowai PS 2018 KHW 060 was registered on 10.05.2018 under Section 354-A of the Indian Penal Code ( for short, IPC) on the basis of a complaint lodged by one Smt. Khela Rani Deb inter alia, stating that while she along with her grand-daughter and grandson were travelling from Teliamura to Khowai by a Magic Jeep, then one 'Sadhu'(monk) who was sitting beside her grand-daughter, 12 years of age, had touched her breast. She cried out and the driver had stopped the vehicle. The complaint was investigated, the said 'Sadhu' namely Prafulla Datta was arrested on the same date i.e. on 10.05.2018. Ultimately, the investigating officer submitted charge-sheet against the appellant under Section 354-A of IPC read with Section 8 of Protection of Children from Sexual Offences (for short, POCSO) Act, 2012. Mentionably, the victim's statement under Section 164(5) of CrPC was also recorded.

The prosecution had examined 10 (ten) witnesses to support the charge framed under Section 354 of IPC and under Section 8 of POCSO Act, 2012.

After conclusion of recording of evidence and having heard the learned counsel appearing for the parties, the learned Special Judge (POCSO), Khowai, Tripura vide judgment dated 15.02.2019 convicted the accused-appellant under Section 354 of IPC and sentenced to suffer R.I. for 1(one) year and to pay a fine of `5000/-(Rupees five thousand) with default stipulation and further to suffer R.I. for 3(three) years and also to pay a fine of `10,000/- (Rupees ten thousand) with default stipulation for committing offence under Section 8 of POCSO Act, 2012.

Being aggrieved, the convict-appellant has preferred the instant appeal.

Mr. S. Kar Bhowmik, learned counsel appearing for the appellant has drawn my attention to the FIR where the victim girl has stated that while travelling from Teliamura to Khowai one 'Sadhu', the appellant herein, sitting beside her had touched her breast. Thereafter, the learned counsel has drawn my attention to the deposition of the victim girl where she deposed as PW-2 that the accused was sitting beside her and after some time he put his hand to her wearing frock and after reaching Ganki, she informed the incident to her grand-mother who told this fact to the co-passengers.

In her cross-examination, the victim stated that -"It is a fact that the vehicle in which I was travelling there were few other passengers beside myself. It is a fact the person who took seat beside me was a monk (sadhu). It is also a fact that the monk was well behaved. I cannot say who lodged this case against the said monk". Later on, she stated that being tutored by police, she made statement before the Magistrate and at the instance of police the present case was launched.

PW-9, the brother who accompanied the victim girl deposed that on the mid way en route to Khowai the accused boarded the vehicle and he sat with them in the same seat. When the vehicle came to Khowai Motor stand the victim told something to her grand-mother but he had no knowledge about the discussion.

PW-14, the mother of the victim deposed that while her daughter was travelling the vehicle, the hand of the accused came in contact with her daughter and she cried out and according to her during travelling due to the jerking of the vehicle the hands and other parts of the body of the accused might have come in contact of the body of her daughter. But she categorically stated that the accused Prafulla Datta had no such ill intention.

From the deposition of the complainant, Smt. Khela Rani Deb, it is found that she did not state in her examination-in-chief that the accused had touched the breast of her grand-daughter, the victim. She only stated that the accused had touched the body of her grand-daughter.

Having heard the submissions of the learned counsel for the parties, I have seriously taken into consideration the deposition of the victim girl. She has never stated that the accused had touched her breast while travelling. She only has stated that the hand of the accused came in contact with her wearing frock and she told this fact to her grand-mother (PW-1) and in cross-examination the victim has seriously contradicted her statement in chief examination when she stated that the accused-appellant was well behaved and she has no complain against the monk and she does not know who lodged complaint against the accused-appellant. She has further stated that she made statement under Section 164(5) of CrPC before the Magistrate being tutored by the police.

I have perused her statement recorded under Section 164(5) of CrPC and noticed that in the said statement she has never stated that the accused-appellant had touched her breast, rather, she has stated that the accused-appellant had started pushing and touching her.

It is not unnoticed that in a vehicle like Magic Jeep the driver used to board passengers more than the permitted capacity and it makes huge difference and in that case, it is not unnatural that during jerking of the vehicle one passenger would come in contact with other co-passengers. Moreover, from the statement of the victim girl, this Court can arrive at a finding that the accused-appellant was well behaved and she has no complain against the accused-appellant and even it was not within her knowledge who implicated the accused-appellant in connection with this case.

Having considered these aspects, according to me, the prosecution has miserably failed to prove its case beyond reasonable doubt and thus, the judgment and order of conviction and sentence passed by the learned Special Judge (POCSO), Khowai, Tripura is erroneous and is liable to be set aside.

Accordingly, the judgment and order of conviction and sentence dated 15.02.2019, passed by the learned Special Judge (POCSO), Khowai, Tripura in case No. Special (POCSO) 11 of 2018 are set aside and quashed.

The appellant, Prafulla Datta is acquitted of the charge levelled against him under Section 354 of IPC and under Section 8 of POCSO Act, 2012. He shall be released forthwith.

In the result, the instant appeal filed by the appellant stands allowed.

Send down the LC records.