Rajkumar Nath vs State Of Tripura

This appeal is filed by the original accused who is convicted for the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, for short) and sentenced to undergo rigorous imprisonment of 3(three) years and pay fine of `10,000 (rupees ten thousand) and to undergo further imprisonment of 6(six) months in default of payment of fine by the impugned judgment dated 19.02.2019 passed by the learned Special Judge, North Tripura Judicial District, Dharmanagar.

Briefly stated the prosecution version was that the accused lived near the house of the complainant. On 21.06.2017 when the complainant returned home she found her husband to be in highly agitated state of mind. Upon inquiries she was told that the accused had removed clothes of their minor daughter aged about 11 years, who would hereafter referred to as the victim girl, and he himself was in awkward condition when the girl was alone at home which was found out by the father of the girl when he returned. The mother of the victim girl lodged the first information report before the nearby police station the next day in which she had stated that at about 12 o'clock in the afternoon on 21.06.2017 she had returned home after attending a meeting of "Bandhan" held close to her house. She found her husband was very angry. Upon inquiry she found out that the accused had misbehaved with her daughter. She had also seen the accused in the vicinity. Upon being inquired with her daughter it was revealed that at about 11 o'clock in the morning the accused had come to their house in absence of anyone else. The girl was alone at home. He had made her to remove her pants and made her to lie down on the bed. He also opened his pant and at that time her husband returned home and the situation was saved from further aggravation.

Upon completion of the investigation the charge was framed against the accused alleging that on 21.06.2017 at about 12 o'clock in the afternoon taking advantage of the victim girl being alone at home he had dragged her on the bed with the intention of outraging her modesty and with sexual intent disrobed her by removing her pants and made forcible physical contact. He was, therefore, charged with the offence punishable under Section 7 of the POCSO Act and Section 354 of the Indian Penal Code.

The first informant, the mother of the victim girl, was examined as PW-1. In her deposition, she had stated that the incident took place on 21.06.2017 at about 12 o'clock. At that time after attending the meeting of "Bandhan" she had gone to the house of the neighbour. About 15 minutes later her daughter came and called her back to home as requested by the husband. When she reached home she learnt from the husband that the accused had taken the victim to the bed, removed her pants and made her to lie down. The husband had seen the incident. Her daughter also supported this version. She had also seen the accused going towards his house on his bicycle. The daughter was studying in Class-V at that time. She produced her birth certificate.

In the cross-examination she admitted that she had a money transaction with the wife of the accused. The wife had taken `50,000/- from her and had to return it in 52 installments out of which after paying 27 installments she had stopped repaying. She denied that her husband had any dispute with the accused.

The most important witness was the victim girl herself who was examined as PW-2. She deposed that at the time of the incident she was studying in Class-V. She was the daughter of his father's second wife. When the incident took place she was alone at home. The mother had gone out to meet the relative and the father had gone to the uncle's house. At about 12 o'clock the accused came and inquired about the father and mother. When he learnt that they were away he entered the hut. She was wearing the pant which was dirty. Accused asked her to change the pants. Since she regularly used to visit his house she thought that the accused would take her to his house. When she came out from the kitchen after changing the pants the accused pulled her and placed her on the bed and removed her pants. He also took out his penis and tried to insert it in her vagina but it started paining. At that time her father entered. The accused begged for mercy. He also offered to pay money.

In the cross-examination the improvements in her deposition as compared to her statement recorded by the Magistrate were brought on record. In her statement recorded under Section 164 of Criminal Procedure Code (Cr.P.C., for short) she had not stated about the accused having opened his chain of the pants and taken out his penis and tried to insert it in her vagina.

Sri Nilmani Nath, the father of the victim girl, was examined as PW-3. In his deposition he had stated that his daughter was studying in Class-V at the relevant time. At about 12 o'clock in the afternoon when he had returned home his wife was not at home. While entering the house he saw a bicycle parked in front of the gate and outside the entrance of the house he found a pair of slippers. When he stepped inside the room he found the accused present. The accused started hurriedly adjusting his clothes. His daughter was lying on the bed. Her pant was removed. The accused suddenly fell at his feet and asked for mercy. He had recently sustained fracture and, therefore, was in a weak condition.

In the cross-examination he denied that the accusation against the accused was false. He denied any dispute with the accused regarding money matters.

Ashok Ranjan Purkayastha, PW-4, owned a shop near the house of the complainant. Upon hearing of the incident he had gone to the house of the complainant. The victim girl was questioned by the mother in his presence.

Smt. Rinki Debbarma, PW-5, was the Sub Inspector of Women Police Station, Dharmanagar at the relevant time. She was present at the police station when the complainant had come to lodge the F.I.R. She had carried out the investigation.

On the basis of such evidence on record, learned counsel for the accused submitted that there are major contradictions in the version of the prosecution. The victim girl had made major improvements in the deposition as compared to her statement recorded under Section 164 of Cr.P.C. In her statement recorded to the Magistrate she had never mentioned about the accused having taken out his penis and tried to insert it in her vagina. This was clearly an improvement which makes the witness wholly unreliable. There were no other eye witnesses to the incident. The possibility of involvement of the accused on account of money disputes between the complainant and wife of the accused cannot be ruled out. Even the complainant was not accurate about the time of lodging of the F.I.R. In her deposition she had stated that the F.I.R. was lodged on the same date which was contrary to the record. In the alternative he submitted that no offence punishable under Section 8 of the POCSO Act was committed. Taking me through Section 7 of the POCSO Act counsel submitted that the accused cannot be stated to have committed the offence of sexual assault. At best it was a case of attempt.

On the other hand, learned Public Prosecutor opposed the appeal contending that the trial Court has given elaborate reasons for requiring the conviction of the accused. The victim girl herself has given the version of the incident. Her father had returned home when the accused was in the process of committing the offence. The father's version is duly corroborated by supporting other evidence. There was no reason for the complainant and other family members of the victim to falsely involve the accused.

As recorded earlier the most important witness would of course be the victim girl herself. In her deposition she had given the version of being alone at home at about 12 o'clock in the afternoon when the accused came there and after inquiring whether the father and mother were at home or not entered the house. He removed her pants and made her to lie down on the bed after which he misbehaved with her. The father of the victim, Nilmani Nath, PW-3, had returned home even when the accused was in the process of committing the said act. According to this witness when he returned home he found the accused hurriedly adjusting his clothes and his daughter was lying on the bed without her pants. The accused had fallen at his feet and pleaded for mercy. The first informant Smt. Purnima Nath, PW-1, was not at home when these incidents had taken place. She was, however, visiting a neighbour from where she was called and thus reached the place within a few minutes. She had inquired from her husband and also with her daughter who both had given a similar version.

The eye witness accounts of the victim girl (PW-2) and her father (PW-3) cannot be easily discarded. Firstly the defence has not been able to establish any animosity between the family of the victim and the accused so as to prompt the complainant to file a false complaint. The suggestion of misunderstanding between the father of the victim and the accused was denied by the complainant as well as her husband. It may be that the wife of the accused had borrowed some amount of money from the complainant and returned only a portion of it, it is difficult to appreciate why such a factor could be a reason or cause for making false accusations. It is not a case where the borrower, in order to avoid the liability of repayment had taken recourse to false accusations.

The version of the two eye witnesses closely matches with that of the complainant who had reached the spot soon after the incident had taken place. It is true that the victim girl has made certain significant improvements in her deposition as compared to her statement recorded to the Magistrate under Section 164 of Cr.P.C. in which she had neither stated that the accused had pulled down the chain of his pants and taken out his penis and tried to insert it in her vagina, nor has she stated that the accused offered to pay money to her father to forgive him. However, so far as the principal version is concerned of the accused visiting the house when she was alone at home and removing her pants and lying her down on the bed, remains unshaken. Mere minor improvements in the deposition of this witness would not shake the very foundation of the prosecution version duly established through the depositions of 3(three) important witnesses. Insofar as the central issue of the accused having entered the house of the victim girl, finding her alone at home and thereafter with sexual intent removing her pants, remains duly proved.

Section 7 of the POCSO Act defines a sexual assault and reads as under:

"7. Sexual Assault.-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

Section 8 of the Act prescribes punishment for the offence of sexual assault which would be of imprisonment of either description for a term which shall not be less than three years but which may extend to five years. As per Section 7 of the POCSO Act thus whoever, with a sexual intent, besides other acts, commits any act which involves physical contact without penetration is also said to commit sexual assault. In the present case, all ingredients of the said offence are present. If the prosecution version is to be accepted as, I have already concluded, it can be easily seen that the accused had with sexual intent involved himself in physical contact with the victim. Since such act was without penetration, the offence would be one of sexual assault as defined under Section 7 and punishable under Section 8 of the POCSO Act. Under the circumstances, I do not find that the learned Special Judge has committed any error in convicting the appellant and sentencing him for rigorous imprisonment for three years for the said offence. However, in default of payment of fine, the accused is ordered to undergo rigorous imprisonment of six months. Firstly, in my opinion, this prescription of six months of imprisonment is excessive and secondly, in any case such imprisonment would be a simple imprisonment not rigorous. In partial modification of the impugned judgment, therefore, while maintaining the conviction of the accused for offence under Section 8 of the POCSO Act and sentence of rigorous imprisonment of three years for such offence as well as imposition of fine of `10,000 (rupees ten thousand), in default of payment of fine it is provided that he shall undergo simple imprisonment of three months.

Appeal is disposed of accordingly.

Pending application(s), if any, also stands disposed of.