Tutan Bhowmik vs State Of Tripura

Heard Mr. Arijit Bhowmik, learned counsel appearing for the convict-appellant. Also heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the State respondent.

This appeal has been filed by the appellant against the judgment and order of conviction and sentence dated 10.05.2019, passed by the learned Special Judge, South Tripura Judicial District, Belonia, in case No.Special 10(POCSO) of 2017, whereby and whereunder the learned Special Judge convicted the appellant under Sections 448/354A of IPC and under Section 8 of the POCSO Act, 2012, and sentenced him to suffer RI for 3 years and a fine of Rs.2,000/- under Section 8 of the POCSO Act. The appellant has also been sentenced to suffer RI for 6 months under Section 448 of IPC and a fine of Rs.1,000/-, in default, to suffer RI for 2 months.

It was directed that both the sentences to run concurrently.

The brief facts are that Sri Sujit Das(PW3), the father of the victim girl lodged a complaint before Belonia Women Police Station alleging that the accused-appellant had trespassed into his house and hugged his daughter, the victim girl forcibly.

The Officer-In-Charge of Belonia Women Police Station had registered the complaint as Belonia Women P.S. Case No.2016 WMN 72 under Sections 447/354 of IPC and Section 8 of the POCSO Act.

Having endorsed, investigation was carried out by the investigating officer and he submitted charge-sheet against the accused under Sections 448/354A of IPC and Section 8 of the POCSO Act.

At the commencement of trial, the learned Special Judge, Belonia, South Tripura framed charges against the accused under Sections 448/354A of IPC and Section 8 of the POCSO Act.

During trial, the prosecution examined as many as 8(eight) witnesses including the victim girl. The accused also had adduced evidence, and for that purpose, 3(three) witnesses including himself were produced.

At the closure of evidence of the prosecution witnesses, the accused was examined under Section 313 of CrPC. He was noticed regarding all the incriminating evidences as surfaced against him by the prosecution witnesses to which he denied all the allegations and claimed to be innocent.

Having heard the learned counsels appearing for the parties, the learned Special Judge, Belonia convicted the accused under Sections 448/354A of IPC and Section 8 of the POCSO Act and sentenced him to suffer imprisonment as afore-stated.

Hence, this appeal.

Mr. Arijit Bhowmik, learned counsel appearing on behalf of the accused-appellant has submitted that the prosecution has miserably failed to establish the charge that the accused-appellant had hugged the victim girl, PW1.

On the other hand, Mr. Sumit Debnath, learned Addl. P.P. appearing on behalf of the State-respondent has argued that the prosecution has been able to prove the charges framed against the accused person beyond reasonable doubt.

I have perused the evidence on record and the findings returned by the learned Special Judge while convicting the accused-appellant.

PW1, the victim girl deposed that the accused was her maternal uncle by relation and on 12.12.2016 at around 9.30 am while her father was at Belonia town and her mother went to Bandhan Bank, she was in the house and her younger sister was playing behind their living hut. The accused-appellant enquired about her parents. Her grand-father, Bhagaban Das who was short of hearing was sitting in the courtyard.

Proceeding further, the victim-girl, PW1 deposed that suddenly the accused caught hold of her hand and expressed his displeasure saying that why she did not talk with him frankly. However, she freed herself and entered into the kitchen. The accused also entered into the kitchen and hugged her. When she threatened to raise alarm, then, the accused freed her and left away. Within a short while, her aunt, Mallika Bhowmik came to their house and she narrated the incident to Mallika Bhowmik. Thereafter, after arrival of her mother, she narrated the incident to her mother, and her mother informed the same to her father.

Nothing material was elicited from her cross- examination.

PW2, Smt. Minu Sarkar(Das), the mother of the victim girl deposed that on 12.12.2016 in the morning she went to Bandhan Bank and her daughter, the victim girl was alone at home and on the day of her deposition the victim was aged about 14 years. PW2 also deposed that at the time of the offence she was not at home and when she returned home from Bandhan Bank, her daughter, the victim girl narrated the incident to her.

PW3, Sri Sujit Das, the father of the victim girl also deposed in the same tune as that of PW2, the mother of the victim girl.

PW5 is the scribe who wrote the ejahar.

PW6, Sri Mithun Sarkar is the uncle of the victim girl. He deposed that after the incident he went to the house of the victim girl where he was informed that the victim girl was hugged by the accused person.

PW7, Sri Nirmal Bhowmik deposed that he heard the incident from the father of the victim girl.

PW8, Smt. Swapna Bhowmik is the Officer-In- Charge who endorsed the case to the investigating officer.

The accused-appellant had adduced three witnesses including him. The accused adduced is evidence as DW1. He stated that he was assaulted by the prosecution witnesses at the house of the victim girl.

DW2, Smt. Mallika Bhowmik stated that she confined the accused in a room of her house.

Having surveyed the evidence and on close scrutiny, I am of the opinion that there is no clear intention on behalf of the appellant to sexually harass the victim girl. He only said why the victim girl was not frankly interacted with him. The accused did not touch any of the private parts of the victim girl.

As such, since there is no intention or mens rea to come in contact with the victim girl and that also with none of the private organs of the victim girl, I do not find any ingredients of Section 8 of the POCSO Act. To bring home the charge of Section 8, the act of the accused must manifest his intention to sexually abuse/assault the minor girl.

Accordingly, the conviction and sentence imposed upon the accused-appellant under Section 8 of the POCSO Act stands set aside.

However, it is true that the accused-appellant came in contact with the victim girl, even there was no intention to sexually exploit her. In view of this, Section 354A of IPC will come into play, and it is also equally true that the accused entered into the house of the victim girl. So, Section 448 of IPC also is attracted.

I find no other alternative but to return a finding of guilt against the accused-appellant and convict him under Sections 448/354A of IPC.

Mr. Bhowmik, learned counsel appearing for the appellant has submitted that the accused-appellant is a poor day-labourer and he has his old parents and other family members, who are entirely dependent on his source of income. Further, Mr. Bhowmik, learned counsel has submitted that if the accused-appellant is sent to jail, then, his entire family shall be in starvation. There is no evidence before this Court that the appellant had ever committed such crime.

As such, I am inclined to impose a sentence of fine upon the convict-appellant. The sentence as prescribed under Section 354A of IPC is not less than 1(one) year or with fine or with both. Since the appellant had no criminal antecedent prior to the present offence, I have taken a lenient view to declare sentence against the appellant.

Accordingly, the convict-appellant, Sri Tutan Bhowmik is to pay a fine of Rs.49,000/-(Rupees forty nine thousand) for committing offence under Section 354A of IPC and Rs.1,000/-(Rupees one thousand) for committing offence under Section 448 of IPC, in default, the appellant, shall undergo simple imprisonment for three months.

The total amount of Rs.50,000/- shall be deposited to the Court of learned Special Judge, Belonia, South Tripura within a period of three months from today.

On receipt of such fine amount of money, the learned Special Judge is directed to pay the same to the victim girl within fifteen days from the date of receipt of the said fine money.

With the above observations and directions, the instant appeal stands disposed.

Send down the LCRs.