Suklal Debnath vs State Of Tripura

[1] This appeal is filed by the original accused who has been convicted for offence under Section 376 read with Section 511 of IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO for short) and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-by the impugned judgment dated 17.05.2019 passed in case No. Special 2(POCSO) of 2018.

[2] Brief facts are as under:

On 07.01.2018 one Mira Datta (Malakar) lodged a First Information Report before the Women Police Station, Belonia, South Tripura that on 05.01.2018 at about 1 p.m. her daughter aged about 15 years (hereinafter to be referred to as a victim girl) was alone in the house. The accused arrived there, took the daughter inside the room, pushed her on the bed and tried to rape her. He tore her clothes. While she arrived about 30 minutes later the daughter narrated the incident to her. The members of the community advised to settle the case. However, this did not happen and, therefore, the FIR was filed on 07.01.2018.

[3] The trial Court framed the charge alleging that on 05.01.2018 the accused had attempted to rape the victim girl and thereby committed offence punishable under Section 336/511 IPC and further that by committing sexual assault on her he had committed offence punishable under Section 8 of the POCSO Act.

[4] The victim girl was examined as PW-1. In her deposition she stated that on the date of incident her mother had gone to collect fire wood. The father had gone for daily work. Her brother was at school. Between 1 to 2 in the afternoon the accused entered the kitchen in the house where she was cutting vegetables. He hugged her from behind, gagged her mouth with his hand, dragged her into the bed room and pushed her on the bed. After that he removed his pants and her panty and tried to insert his penis in the vagina but she put up a resistance. She raised alarm upon hearing of which a neighbour Atul Debnath whom she referred to as Atul mama arrived upon which the accused ran away. The mother returned after 30 minutes of the incident to whom she had narrated it. Father returned late at night. Her statement was recorded by the Magistrate. In the cross-examination she insisted that she had conveyed to her mother that upon hearing her shouts Atul mama had come to the house.

[5] The mother of the victim the first informant was examined as PW-2. She deposed that she returned home on the date of incident at about 1.30 in the afternoon. Her daughter started crying and narrated the incident of the accused having entered the kitchen and dragged her into the room and removing her clothes and trying to rape her. Upon which she raised alarm and Atul Debnath arrived when the accused ran away. In the cross-examination she was confronted with the fact that in the FIR she had not mentioned about arrival of Atul Debnath upon which the accused had to flee. It was also suggested to this witness that Atul Debnath was alleged to have committed theft of rubber sheet from the house of one Dulal Debnath and he was caught red handed by the accused upon which Atul was dismissed by Dulal Debnath and, therefore, the accused was being involved in a false case. She however, denied such suggestions. The defence also questioned this witness on the proximity of several other neighbourhood houses in order to suggest two things. Firstly that the hut of the victim was not isolated but surrounded by many other houses and that no other people had either arrived or called after the incident.

[6] Another crucial witness is Atul Debnath, PW-5. He deposed that in the afternoon he was standing near a pond next to the house of the accused when he noticed that the accused was dragging the victim girl inside the hut. He went there and found that the victim was resisting the accused upon which he left the house of the girl.

[7] Reference to the rest of the witnesses is not necessary since entire prosecution version revolves around the deposition of these three witnesses. The victim girl of course is important because she is a sole eye witness. Sri Atul Debnath, PW-5 would be important because he claims to have reached the spot immediately. The mother of the victim is also important because it is to her that the victim soon after the incident is stated to have narrated the event. Comparing the evidence of these witnesses would show that there are major contradictions in the prosecution version. First of all as per prosecution the victim girl had resisted the attempts of the accused and started shouting upon hearing of which Atul Debnath arrived thereupon the accused ran away. This crucial aspect of Atul Debnath arriving at the scene while accused was still there had not been mentioned by the complainant in the First Information Report. More importantly, according to the victim girl she was cutting vegetables in the kitchen when the accused came from behind, gagged her and dragged her into the other room. She was thereafter subjected to a sexual assault, falling short of actual penetration and rape before Atul Debnath hearing her shouts arrived at the scene. This version of the victim is in stark contrast to the deposition of PW-5, Atul Debnath who claims that while standing near a pond he saw the accused dragged the victim inside the house upon which he went to the scene and soon left.

[8] This contradictions are irreconcilable. According to the victim if she was inside the house, Atul Debnath could not have seen the accused dragged her. According to Atul Debnath he saw the accused dragged the victim inside the house which is not worth the victim had stated. Further if PW-5 had seen the accused dragged the victim, by natural human conduct he would have rushed to the sight leaving little time to the accused to commit any of his intended acts. As per the victim, however, he came from behind, covered the mouth with his hand preventing her from shouting then dragged her into the room, pushed her on the bed, removed the clothes partial and attempted insertion.

[9] On account of these major contradictions, the prosecution version becomes unsafe to rely. Couple with the suggestion of recent cause for false involvement, in my opinion the trial committed an error in convicting the accused. The judgment of conviction and sentence is set aside. Appeal is allowed. Appellant shall be released forthwith, if not required in any other criminal case.