Tripura High Court
Convict vs The State Of Tripura on 20 February, 2020
Author: Arindam Lodh
Bench: S. Talapatra, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL. APP (J) NO.56 OF 2015
Sri Chiranjit Das
S/O-Sri Tapan Das
Resident of Chesrimai
P.S.-Bishramganj
P.O-Bishramganj
District-Sepahijala Tripura.
----Convict-Appellant
Versus
The State of Tripura.
----Respondent
For the Appellant(s) : Mr. B. Deb, Advocate For the Respondent(s) : Mr. S. Ghosh, Spl. P.P. Date of hearing : 18.07.2019 Date of delivery of Judgment & Order : 20.02.2020 Whether fit for reporting : NO HON'BLE MR. JUSTICE S. TALAPATRA HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER (Arindam Lodh, J) Heard Mr. B. Deb, learned counsel appearing for the appellant as well as Mr. Samrat Ghosh, learned Spl. P.P. appearing for the State-respondent.
2. This appeal is directed under Section 374(2) of Criminal Procedure Code, 1973, against the order of conviction and sentence passed by the learned Special(POCSO) Judge, West Tripura, in case No. Special(POCSO) 04 of 2014 vide judgment dated Page 2 of 16 28.09.2015 convicting and sentencing the convict- appellant under Section 6 of Protection of Children from Sexual Offences Act, 2012 to suffer R.I. for ten years and to pay a fine of Rs.5,000/- in default, to suffer R.I. for further period of three months.
3. The prosecution case, in short, is that on 12.08.2013 at about 7.00 a.m. the victim went to the Chesrimai Renasus Nursery School, being a Nursery student of that school. At about 9.30 a.m., the convict- appellant, who was a teacher of the school, took her to a room of the school and inserted his penis in her mouth. Returning home, she informed this to her mother. At that time, her father was at Mumbai in connection with his job and he was informed about the said incident by his wife Smt. Swapna Debnath. Knowing that information, he returned back to home on 15.08.2013 and approached the local people for redress who assured of a settlement at night, but this was not acceptable to him. So, his father lodged the complaint at the Bishramganj Police Station at 2315 hours of that night. The case was registered and its investigation was undertaken during which the accused was arrested and after completion of investigation, charge- sheet was filed under Section 376(2)(i) of IPC and Section 12 of Protection of Children from Sexual Offences Act, 2012.
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4. Cognizance being taken, the case was committed to the Court of learned Special(POCSO) Judge, West Tripura District, Agartala. In course of trial, charge was framed to which the convict-appellant pleaded not guilty and claimed to be tried.
5. Prosecution side examined as many as 11 nos. of witnesses and exhibited some documents to prove their case. The convict-appellant was examined under Section 313 of CrPC. On the other hand, the defence case was of total denial of the allegation brought against him and defence side did not adduce any evidence from their side. Thereafter, argument was heard and learned trial Court below delivered the impugned judgment on 28.09.2015 convicting and sentencing the convict appellant as afore- stated.
6. Being aggrieved by and dissatisfied with the said order of conviction and sentence, dated 28.09.2015 passed by the trial Court, i.e. learned Special(POCSO) Judge, West Tripura District Agartala, the convict-appellant preferred the present appeal.
7. While deciding the case declaring conviction upon the accused-appellant, the learned trial Judge has observed that--
"Admittedly, the evidence as discussed above reflects little bit of discrepancy for example Exbt.A Page 4 of 16 visa a vis deposition of P.Ws 1, 3, 7 & 8 that on the date of the incident PW3 was in Mumbai. Secondly, the deposition of PWs. 1 and 2 that the incident took place in „B‟ class room whereas P.O. is reflected as „C‟ class room."
Further, the learned Judge has observed that--
"Question now is whether this makes the severe allegation brought by the victim doubtful. She being a child of 4 years at the time of incident could not have brought the allegation against her teacher if it had not happened and considering that she reported the incident to her mother and grand father after reaching home, the incident is to be accepted as true. Here, it may be apposite as to ............................"
After perusal of the judgment of the trial Court as well as the overall evidence of the witnesses, in our opinion, the deposition of 5½ years of victim girl(PW2) and PW4, a co-teacher of the school carries enough significance, which leads us to have a survey over the entire prosecution evidence to decide this appeal.
8. P.W.-1, Smt. Swapna Debnath, mother of the victim stated that the victim is her daughter. The incident took place on 12.08.2013 at the Chesrimai Renesus Nursery School in which the victim(name withheld) was reading. On that day, she left her at the school at 7.00 am and brought her back at 10.00 am. The school was in the house of the proprietor, Sri Bikash Debnath. After Page 5 of 16 sometime, the victim informed her that during the recess time of the school, Sri Chiranjit Das, one of the teacher, whom she called as 'Mejo Uncle‟ took her to the 'B' section and put his penis into her mouth. The day of occurrence was Monday and thereafter, she did not send her to the school any more. At the time of incident, her husband was in Mumbai. Being informed by her about the incident, he returned back to home and along with her father-in-law accompanied by her husband, lodged a police complaint at Bishramganj Police Station. The police visited their house and seized the birth certificate of the victim and prepared the seizure list marked as Exbt.-1.
In her cross examination, she stated that while being questioned by the lady police officer she stated that she gave statements what she deposed before the Court at the time of her examination-in-chief. But, when her attention was drawn to the recorded statement she admitted that this particular statement was not there. During further cross-examination she stated that on 14th August 2013, she sent the victim to the school for sometime but she did not attend the whole day class.
9. P.W.2, the victim(name withheld) stated that on that day Chiranjit uncle took her to the 'B' class and pressing her mouth put his penis in her mouth. Returning home, she informed the incident to her mother and Page 6 of 16 grandmother. She was reading in the Nursery. After the incident she stopped going to school.
In her cross-examination she also stated the same thing in Court and specifically denied the fact that she on returning home informed her father also about the incident. She certifies that there are two class rooms in her school which was in the morning. Being asked how many doors and windows were there in the class room, she stated that there was no door. Being asked by the Court as to how she entered the class, she points to the door of the Court.
10. P.W.-3, Sri Sajal Debnath, father of the victim stated that victim is his daughter and on the day of incident i.e., on 12.08.2013 he was in Mumbai. On that night his wife Smt. Swapna Debnath informed him over mobile phone that when in the morning the victim went to the school, her teacher Chiranjit Das inserted his penis in her mouth. Hearing this he started for his home on the following morning and reached home. On 15.08.2013 around 9.00 am on arrival he learnt from the victim about the incident. He then informed the matter to Pradhan, Sri Kanu Lal Debnath and also to Sri Bikash Debnath, proprietor of the school. But they assured of settlement at night which he did not accept and went to the Bishramganj police station for lodging the complaint. Police visited the Page 7 of 16 house and seized the certificate of birth of the victim and prepared the seizure list.
In his cross examination, he stated that, he was informed by his wife over mobile phone and then he reached to the home. When the attention of the P.W.-3 was drawn to the recorded statement he admitted that statements in regard to his conversation about the incident with Sri Kanu Lal Debnath and Bikash Debnath were absent.
11. P.W.-4, Sri Mithun Rudra Paul, the co-teacher of the school in his deposition stated that he was a teacher in the Renesus Nursery School, Chesrimai. He along with Chiranjit Das, the appellant-accused were present in the school on 12.08.2013. There were three sections at nursery level, namely A, B & C. As, Smt. Dipti Debnath (co-teacher, wife of proprietor) was absent, P.W.-4 conducted classes in both the Sections of 'B' and 'C' together. Chiranjit Das, the appellant-accused conducted class in Section 'A'. The timing of the school was 7.00 A.M. to 10.00 A.M. On 13.08.2013, P.W.-4 was informed by Bikas Debnath, the proprietor of the School that Chiranjit did something wrong with the victim.
In his cross examination, P.W.-4 stated that the walls of the School were made of Champa Kampa bamboo and the doors and windows did not have any locking Page 8 of 16 device. The recess hour was 8.30 to 9.00 A.M. He further stated that during the recess he and the accused took care of the children and then took them to respective classes.
12. P.W.-5, Smt. Dipti Debnath stated that Bikash Debnath, her husband is the proprietor of Renesus Nursery School and on 12.08.2013 she along with her husband and child had gone to Nalchar on account of marriage of their niece. P.W.-5 returned a week later and was informed about the incident by her husband. She further stated that the victim was a student of nursery.
In her cross examination, she stated that the parents of the victim did not enquire about the incident from her. The walls of the classrooms were made of chamka kampa bamboo. The doors and windows of the class room used to remain open.
13. P.W.-6, Sri Bikash Debnath, the proprietor of the school stated that he had opened the school and after being provided with Government job, he left the school and the school was run by the accused-appellant, Mithun Rudra Paul and his wife Dipti Debnath. He further stated that on 12.08.2013 he along with his wife and child had gone to Nalchar. He returned on the next day and was informed by Uttam Debnath regarding the incident. 2-3 days later, a police officer came and seized certain items. Page 9 of 16
In his cross examination, he stated that on being examined by the police he stated that Uttam Debnath informed him about the incident, but, when his attention was drawn to the recorded statement he admitted that such statement was not there.
14. P.W-7, Sri Nepal Debnath, grand-father of the victim stated that on 12-08-2013 while taking food, the victim started crying and said that she would not go to school anymore because her teacher had pressed her face and entered his penis into her mouth. He further stated that the victim's father Sajal Debnath was in Bombay and upon his arrival, on 15.08.2013, FIR was lodged.
In his cross examination he stated that he did not mention the absence of his son was the reason for his delay in lodging FIR.
15. P.W.-8, Sri Goutam Debnath stated that the victim was his niece and his son Ananta was also reading in the same section 'A' as his niece. He further stated that on 12.08.2013 the victim informed that her teacher Chiranjit had entered his penis into her mouth.
In cross examination, he stated that in his recorded statement he had not stated that his brother was in Mumbai. He further stated that on 14.08.2013 the victim and Ananta did not go to school.
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16. P.W.-9, Smt. Uma Debnath, stated that the victim was the daughter of her brother-in-law, Sajal Debnath and the vctim and P.W.-9's son Ananta informed her that on 12.08.2013, Chiranjit Das had entered his penis into the victim's mouth.
In her cross examination, she stated that on 14.08.2013, the victim and Ananta did not go to school.
17. P.W.-10, Sri Dulal Datta, stated in his disposition that about 1-2 years back, Nepal Debnath had approached him to write a complaint and he had accordingly written the same and narrated the complaint to Nepal Debnath and he (Nepal Debnath) put his signature in it.
In his cross examination, he stated that in the compliant, it was not mentioned that the compliant was narrated by Nepal Debnath.
18. P.W.-11, Smt. Sipra Das, S.I. Bisramganj P.S. stated that on 15.08.2013, the officer-in-charge Saraj Bhattacharjee had received a written complaint from Shri Nepal Debnath and registered a P.S. Case No.77 of 2013. She had then taken up the investigation and went to the house of the informant at Chesrimai at 23.38 hours and recorded the statement of the parents of the victim. On 16.08.2013 at 00.05 hours, she had recorded the statement of the victim. She then seized the birth Page 11 of 16 certificate of the victim and prepared a seizure list. She then took the victim for medical examination and after her medical examination, returned to the house of the victim. She then went to the house of the accused but he was not present in his house.
On 16.08.2013 at 06.55 hours, she reached the school and prepared a sketch map of the place of occurrence with the help of the victim and her mother. The statement of the co-teacher was recorded by her and attendance register was seized and a seizure list was prepared. She then took the victim for recording statement under Section 164 of CrPC to the learned SDJM Bishalgarh. At. 23.05 hours on the basis of the secret information, the accused was arrested in Charilam market. She then proceeded for medical examination and potency test of the accused. On 17.08.2013, statement of Ananta Das, Saraswati Das and Arati Pal was recorded by her. On 23.08.2013, statement of scribe was recorded along with informant, Uma Debnath, Goutam Debnath and the classmates of the victim (no definite statements found). She had received the medical report of the victim on 23.08.2013 and so submitted the summary report to submit charge-sheet under Section 37692)(1) of IPC and Section 12 off the POCSO Act. The investigating officer then filed the charge-sheet on 30.09.2013. Page 12 of 16
In her cross examination, the investigating officer stated that the place of occurrence was at Section C. The attendance register reveals that the victim was present on 14.08.2013 but Ananta was absent. The house cum school was near the highway but at a low level. The investigating officer further stated that the victim had stated that she had narrated the incident to her grandfather, mother and father.
19. The complainant had consumed three days to lodge the FIR. The FIR was lodged by the grandfather (P.W.-7) of the victim girl. There is no explanation why such delay was caused. Since it is a case where a girl child is allegedly victimized, the delay in such a case may suffer from substantial exaggerations and improvement and even there is a chance that the victim child may forget important details regarding the incident after such delay which may ultimately affect the reliability of the prosecution case
20. The mother(P.W.-1) and the victim(P.W.-2) clearly mentioned Section 'B' classroom as the place of incident in their deposition before the Special Judge. However, when they were taken to the school by the investigating officer, they pointed towards Section 'C' classroom as the place of occurrence of the incident. Their statements being inconsistent in itself, do not inspire confidence of this Court. Also, P.W.-1 in her deposition Page 13 of 16 stated that she did not send her daughter to school after the alleged incident, which is again contradicted by her statement in her cross-examination wherein she said that she sent her daughter to school on 14th August i.e., the 2nd day after the incident to school for some time.
21. A total opposite version we find in the statement of P.W.-4, Mithun Rudra Paul, a co-teacher of the school. In course of trial, the said witness has deposed that the walls of the school were made of bamboo and the doors and windows did not have any locking devices and the doors were used to be kept open and the room were visible from outside. The said witness has categorically stated that the recess hour was 8-30 am to 9.00 am and on 12.08.2013 the students were taking tiffin during recess in the open space and he himself and the accused- appellant were at that open space to look after the students. The said witness has further stated that the victim girl and another Ananta Debnath were also found to be present in the said open space. After the recess he took students of sections 'B' and 'C' to the room and Chiranjit Das, the accused-appellant herein took the students to the particular room and after the school hour the students left and the school was closed. The said witness has further stated that he found Chiranjit Das talking to mother of the victim girl. In his further cross-examination, P.W.-4 has stated that on the day of incident during recess time he Page 14 of 16 along with Chiranjit Das were assisting the students in taking tiffin and thereafter they proceeded to their respective class rooms.
22. On cumulative reading of the evidence, we find lot of uncertainties about the place of occurrence of the alleged incident as P.W.-1 and P.W.-2 have failed to be consistent in identifying the place of occurrence. Further, it appears very difficult to the Court to understand as to how the alleged act being so private in nature can be committed in such a classroom, which was even no proper fencing and without any proper windows and doors. Further, the P.W.-4, being one of the vital witnesses of the case has categorically stated that during recess hour the accused-appellant was all along with him attending the students of the school during that time.
23. In the instance case, the testimony of the child witness is not consistent within itself as to the place of occurrence of the alleged incident which is very material to establish the prosecution case. Furthermore, the time of the incident also does not find any clarity from the child or her mother's testimony, as the child stated that the time of commission of offence was at 9.20 am, whereas the mother stated that it was at 9.30 am, which seems highly improbable.
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24. It is settled law that while assessing the testimony of a child witness having aged about 5½ years, the Court should bear in mind that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe.
25. The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements of P.W.-1 and P.W.-2 and if their statements in course of trial are read with the statements made by P.W.4, then, it would be very difficult for this Court to believe the projected case of the prosecution. The learned trial Court had observed that there are some discrepancies found in the evidence of P.W.-1 and P.W.-2, but, it is settled proposition of law that the charge framed against the accused person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analysed above, appeared to be abnormal in nature which are not expected from a normal person. After cautious scrutiny of the evidence of P.W.-1 and P.W.-2 and considering the entire chain of circumstances we find it difficult to arrive at a finding to draw the hypothesis of guilt against the Page 16 of 16 accused-appellant. The prosecution has failed to persuade this Court as to why P.W.-4 will not be disbelieved and his evidence is to be discarded. More so, the prosecution has not declared P.W.-4 as hostile. The statements of P.W.-4 are found to be consistent altogether.
26. In the backdrop of above analysis, the prosecution has failed to establish their projected case and consequently the instant appeal is allowed. Accordingly, the order of conviction and sentence passed by the learned Special(POCSO) Judge, West Tripura, in case No. Special(POCSO) 04 of 2014 vide judgment dated 28.09.2015 is set aside. The accused-appellant, namely Chiranjit Das shall be released forthwith, if not wanted in connection with any other case.
27. With the above observations and direction, the instant appeal stands disposed accordingly.
JUDGE JUDGE