Tripura High Court
Sri Bijoy Bhushan Das vs The State Of Tripura on 12 July, 2018
Equivalent citations: AIRONLINE 2018 TRI 143
Author: Arindam Lodh
Bench: Arindam Lodh
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. 68 of 2015
Sri Bijoy Bhushan Das,
S/o Sri Kshirode Das,
Resident of Village-Hurua,
P.S. Kadamtala, District- North Tripura.
----Petitioner(s)
Versus
The State of Tripura
Represented by the Public Prosecutor,
High Court of Tripura.
----Respondent(s)
For Petitioner(s) : Mr. D Bhattacharya, Adv.
For Respondent(s) : Mr. A Roy Barman, Addl. PP.
Date of hearing & delivery
of judgment & Order : 12.07.2018
Whether fit for reporting : NO
HON'BLE MR. JUSTICE ARINDAM LODH
Judgment & Order (Oral)
Heard Mr. D Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. A Roy Barman, learned Addl. PP appearing for the State.
2. The prosecutrix in the present case has lodged a written complaint in the Court of Sub-Divisional Judicial Magistrate, Dharmanagar stating inter alia, that she was compelled to involve in sexual intercourse with the petitioner on the pretext that the petitioner would marry her but subsequently, it was found that the petitioner was not agreeable to marry her when she made the demand for marriage. It is to be mentioned here that in the complaint the prosecutrix also alleged that she became pregnant due to her involvement with the petitioner. Page 2 of 8
3. The learned court forwarded the said complaint to the Officer-in-Charge of the Kadamtala Police Station with a direction to treat the said complaint as FIR to be followed by necessary investigation. After completion of investigation, the IO filed charge sheet against the petitioner under Sections 493/420/313 of the IPC.
4. During the course of trial, the learned trial court has framed charges against the petitioner under Sections 313/417 of the IPC. As many as 9 witnesses were examined by the prosecution including the prosecutrix.
5. During examination of the prosecutrix as PW1, she has reiterated the facts as stated by her in her complaint petition. In her cross-examination, she has stated that she was not sent to the Dharmanagar Sub-Divisional Hospital for her pregnancy test by a Medical Officer. However, she could not say anything about the date or month when her menstruation had stopped for the last time before such pregnancy. She also could not say the exact date, time and month when the petitioner committed sexual intercourse with her. She has admitted that she did not mention in her written complaint about the fact that the petitioner used to visit her residence in the night and tried to administer some unknown medicine to her. She has stated that she got her urine test report on 01.12.2012 but she did not hand over the report to the Kadamtala P.S. at the time of lodging the oral FIR. She also did not file it at the time of filing the complaint petition before the court below. She has stated that the petitioner Page 3 of 8 is an elected Member of their Gram Panchayet and both of them are MGNREGA workers. She has denied that she lodged a false complaint against the petitioner.
6. PW2, Smt. Sukla Suklabaidya, being the mother of the prosecutrix has stated that though she knew about the relationship between her daughter PW1 and the petitioner, yet she did not disclose it to anyone until the pregnancy was terminated, while according to her, the petitioner administered some unknown medicine to her daughter for termination of the said pregnancy. According to her, she and her husband reported the matter to the parents of the petitioner.
7. In her cross-examination, she has stated that the prosecutrix underwent medical examination by the doctor of the Kadamtala PHC. She has stated that she could not say when her daughter became pregnant. She has admitted in her cross- examination she did not tell the IO that on one night the petitioner gave some medicine to her daughter.
8. PW3, Bidit Kr. Sen, has stated that there was some meeting with the prior permission of the Officer-in-Charge of the Kadamtala PS about the relationship between the prosecutrix and the petitioner. In the said meeting, one pathology report was produced in regard to the pregnancy of the prosectrix but the said witness could not say what resolution was taken in that meeting. When the copy of the resolution was shown to PW3, it was found that the resolution did not disclose the allegation Page 4 of 8 raised by the victim girl about the petitioner to the effect that the victim girl had a physical relation with the petitioner and there was any promise on behalf of the petitioner to marry her. He has admitted that he did not state to the IO that the victim girl, i.e. PW1 showed any pathological report regarding her pregnancy to him and other villagers who attended the meeting.
9. PW4, Kohinoor Roy is the owner of the diagnostic clinic where the PW1 prosecutrix underwent pregnancy test. He identified the report as Exhibit-2.
10. In his cross-examination, he has stated that the report does not contain the sample number and he has admitted that it does not disclose the exact identity of the patient except her name. He has further stated that the pathological report sometimes vary from time to time for which they acknowledge the fact that their report is not valid for medico-legal purpose. PW5, Biprajit Rn. Das was declared hostile.
11. It is very significant that PW6, Girindra Das Gupta, an independent witness has stated in his cross that in the meeting, discussion was made mainly on the issue that the mother of the victim prosecutrix had a dispute regarding payment of wages of MGNREGA work with the petitioner. He admitted that in the resolution of the meeting dated 25.12.2012 there was no mention about any allegation to the effect that the petitioner had developed any physical relation with the prosecutrix PW1. Page 5 of 8
12. PW7, Amitabha Chakraborty is the doctor who did not examine the prosecutrix. The doctor who examined the prosecutrix has not appeared as a witness before the trial court. In his cross-examination, he has stated that the prosecutrix was advised by Dr. D. Das Choudhury to attend Dharmanagar Sub- Divisional Hospital for ultra sonography of her abdomen and for age determination and urine pregnancy test.
13. PW8, Sundar Mohan Nama is a witness of seizure of the medical pregnancy test report of the prosecutrix.
14. PW9, Parikhit Debbarma is the IO of the case who filed the charge sheet against the petitioner. He has submitted that he received a photo copy of the resolution as a part of the complaint. He has stated in his cross-examination that he did not arrange for the ultra sonography test of the whole abdomen or urine test in any hospital as per advice of the attending doctor, Dr. D Das Choudhury. He has also stated that he did not seize the relevant documents from the Central Diagnostic Clinic in connection with the clinical report of the prosecutrix.
15. The petitioner, in his examination under Section 313 CrPC has stated that he has been implicated falsely and the dispute arose regarding the payment of wages out of MGNREGA scheme. He has denied that he had developed any physical relation with the prosecutrix.
16. On the basis of the evidence on record, as discussed above, the learned trial court has convicted and sentenced the Page 6 of 8 petitioner to suffer RI for one year and to pay a fine of Rs.5,000/- for commission of offence punishable under Section 417 of the IPC, i.d. to payment of fine money to suffer SI for three months. The petitioner was further convicted and sentenced to suffer RI for five years and to pay a fine of Rs.20,000/-,i.d. to suffer further RI for six months for commission of offence punishable under Section 313 of the IPC.
17. Being aggrieved by the said conviction, the petitioner assailed the judgment in appeal before the learned Sessions Judge, Dharmanagar, North Tripura. After hearing the parties, the learned Sessions Judge has set aside the conviction and sentence of the petitioner under Section 313 of the IPC but the conviction under Section 417 of the IPC, as passed by the trial court, was upheld.
18. Being dissatisfied with the said judgment of conviction and sentence as passed by the learned Sessions Judge, Dharmangar, North Tripura, the petitioner has preferred this Criminal Revision Petition before this Court.
19. Mr. D Bhattacharjee, learned counsel appearing for the petitioner submits that the findings of both the courts below are perverse. There is no material to support the conviction and sentence as recorded by the courts below. He further submits that there are no ingredients which attract the provisions of Section 313 or 417 of the IPC. The allegation of development of physical relationship as well as the story of pregnancy has not Page 7 of 8 been proved but both the learned courts below have failed to appreciate the said evidence in recording the conviction and sentence of the petitioner.
20. Mr. A Roy Barman, learned Addl. PP appearing for the State has, in his usual fairness, has conceded to the fact that the prosecution has miserably failed to establish the ingredients of Section 417 of the IPC.
21. I have heard the learned counsel for the parties and having scanned the evidence and materials on record, I find that there is no consistency in the statements of the prosecutrix as well as her parents and other independent witnesses. Even in the resolution that was recorded during the meeting of the village people, there was no mention of the fact of development of sexual relation between the petitioner and the prosecutrix. Rather, a different story was raised regarding dispute of payment of wages arising out of works under the MGNREGA scheme. More so, there is no proof at all that supports the story of pregnancy. The IO also did not make any effort to confirm the fact of pregnancy as narrated by the prosecutrix.
22. In the light of the above discussions and observations, according to me, this is a fit case to interfere with the findings recorded by the court below. Accordingly, I interfere and set aside the judgment dated 30.06.2015 delivered in Crl.A.04/2015 by the Sessions Judge, North Tripura, Dharmangar and acquit the Page 8 of 8 accused-petitioner from the charges levelled against him and set him at liberty.
23. It is submitted by the learned counsel for the petitioner that the petitioner is presently on bail. In view of his acquittal, his bail bond stands discharged.
24. Consequently, the present criminal revision petition is allowed and accordingly, disposed of. Send down the LCRs.
JUDGE lodh