Tripura High Court
Sri Jowel Nath@Suman(Aged 25 Years) vs The State Of Tripura on 7 September, 2022
Bench: T. Amarnath Goud, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.21 OF 2021
Sri Jowel Nath@Suman(aged 25 years),
S/o. Late Sunil Nath, residing at West Radhapur,
Ward No.07, P.S.- Dharmanagar,
Dist.- North Tripura, Tripura.
-----Appellant(s)
Versus
The State of Tripura.
(Notice to be served through the Ld. Public Prosecutor)
Tripura High Court Bar, Agartala, West Tripura.
-----Respondent(s)
For the Appellant(s) : Mr. P.K. Pal, Advocate.
Mr. S. Datta, Advocate.
For the Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 31.08.2022
Date of delivery of
Judgment & Order : 07.09.2022.
Whether fit for reporting : NO.
BEFORE
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
(T. AMARNATH GOUD)
This instant appeal has been filed under Section 374(2) of the Criminal Procedure Code for quashing/setting aside of the judgment and order of conviction dated Page 2 of 15 01.09.2021 passed by the learned Special Judge(POCSO), North Tripura, Dharmangar, Tripura in Case No. Special(POCSO)02 of 2020.
2. The fact of the case, in brief, is that, one Smt. Shelly Rani Das, W/o Sri Sajal Kanta Das of West Padmadil, Ward No.05, P.S. Panisagar, North Tripura, District-Tripura, lodged an ejahar on 18.12.2019 with the officer-in-charge of Panisagar Police Station. In the said ejahar, it was alleged that on 05.11.2019 at about 6.30 to 7.00 am, her minor daughter, name withheld, a student of Class-VIII, aged about 14(fourteen) years went out from the home to attend her private tuition at Nutun Bazar, Padmabil, but, she did not return home. At about 10.00 am, she searched in all possible places but ultimately she could not be traced. Thereafter, the victim made a call on a mobile phone and informed her mother that the accused-appellant herein and his another associate gagged her mouth and forcibly kidnapped her by a motorbike. She was taken away to the house of the appellant herein. Hearing the information, the complainant and her husband went to the house of Jowel Nath, the appellant herein, and consulted the mother of the appellant, Smt. Jayanti Nath. She refused to hand over the victim to her parents and assured Page 3 of 15 them that there would be an amicable settlement of the matter. In the meantime, the accused-appellant kept the victim confined in his house and repeatedly had sexual intercourse with her. Thereafter, they declined to settle the matter amicably for which delay was caused in lodging the ejahar.
3. O.C. Panisagar P.S. accordingly registered a Panisagar Police Case No.2019 PNS 071 for the commission of offenses punishable under Section 366A, 376(3) of IPC read with Section 4 of the POCSO Act, 2012 against the appellant herein. S.I. Gurupada Debnath was entrusted with the charge of the investigation. In the course of the investigation, the victim was produced before the medical officer for her medical examination. Accordingly, medical examination was done, the report was collected and placed on record. The statement of the victim was recorded under Section 164 of Cr.P.C. on 19.12.2019. The appellant was also arrested and was medically examined and report of the said examination was collected and also placed on record.
4. After completion of the investigation, the I.O. submitted the charge sheet against the appellant herein for the commission of offenses punishable under Section 366A/376(3) of IPC read with Section 4 of the POCSO Act 2012. Cognizance Page 4 of 15 was taken on the charge sheet and Special Judge (POCSO) Court framed the charge under Section 366A/376(3) of IPC read with Section 4 of the POCSO Act 2012, to which the appellant-petitioner pleaded not guilty and claimed to be tried.
5. During the Trial, the prosecution examined 11(eleven) witnesses which are as follows:-
P.W.-1, Smt. Shelly Rani Das P.W.-2, The victim herself(name withheld) P.W.-3, Sri Sajal Kanti Das P.W.-4, Sri Sanjit Debbarma P.W.-5, Sri Smt. Mamata Goala. P.W.-6, Dr. Rahul Chandra Saha. P.W.-7, Dr. Kallol Biswas. P.W.-8, Dr. Smt. Sudipa Biswas. P.W.-9, Sri Bir Kishore Tripura. P.W.-10, Sri Gurupada Debnath. P.W.-11, Sri Amulya Kumar Das.
6. Out of the above 11(eleven) witnesses examined by the prosecution, P.W.-1 is the mother of the victim girl and she filed ejahar to the Panisagar Police Station, P.W.-2 is the victim herself, P.W.-3 is the father of the victim, P.W.- 4 & 5 are official witnesses, P.W.-6, 7 & 8 are medical expert witnesses, P.W.-9 is also official Witness, P.W.-10 is the investigating officer of the case and P.W.11 has written the ejahar.
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7. The prosecution also examined some documents (Exbt-1 to Exbt-13). One defence witness i.e. Sri Manoranjan Debnath was also examined.
8. The learned Special Judge(POCSO) Court found the accused-appellant herein guilty of the charges framed against him under Section 366A/367(3) of IPC and sentenced him to undergo rigorous imprisonment for 10(ten) years under Section 366A of the IPC with a fine of Rs.10,000/- only with default stipulation. Further, the appellant herein was also sentenced to suffer rigorous imprisonment for 20(twenty) years for commission of offence under Section 376(3) of IPC with a fine of Rs.10,000/- only with default stipulation.
9. Being aggrieved and dissatisfied with the said impugned judgment dated 01.09.2021, passed by the learned Special Judge(POCSO), North Tripura, Dharmanagar, convicting the appellant herein, in Trial Case No. Special (POCSO) 02 of 2020, the appellant herein has preferred the present appeal.
10. Heard Mr. P.K. Pal, learned counsel, and Mr. S. Datta, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. P.P. appearing for the State- respondent.
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11. Mr. P.K Pal, learned counsel appearing for the convict-appellant submitted that to constitute an offence committed against the victim herein under Section 366A of IPC, the prosecution has to establish that the victim girl was actually kidnapped by the appellant herein by collecting and producing independent ocular witnesses who have either seen the victim being kidnapped by the appellant or seen the victim held in confinement in the house of the accused herein. There is no independent witness to prove the kidnap story. Learned counsel on the point of performing sexual acts and penetration has submitted that the medical witnesses are nothing but mere speculation and it is not definite and confirmed. Learned counsel submitted that the witnesses of P.W.-1 and P.W.-2 are not corroborative of each other. Learned counsel further submitted that the age of the victim girl has not been established to be below 16(sixteen) years of age by producing evidence on record. Stating thus, learned counsel prayed to allow this instant appeal and set aside the judgment and order of conviction dated 01.09.2021.
12. Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent submitted that the evidence of all the witnesses is synchronized and very much trustworthy. Page 7 of 15 Furthermore, there is no missing link in the series of acts one after another from the very inception to the end. Learned Addl. P.P. further submits that the parents of the victim also corroborated the evidence of the victim and their evidence strengthened the prosecution case. The accused appellant herein does not deserve any sympathy and he is not entitled to get any benefit under any beneficial legislation. Stating thus, learned Addl. P.P. urged to uphold the judgment and order of conviction of the Court below.
13. Heard both sides and perused the evidence on record.
14. From the witness of P.W.-1, the mother of the victim and the informant of the case, it is revealed that P.W.-2, the victim is her daughter and she is aged about 15 years. She was studying in Class-IX. The P.W.2 normally returns home every day by 09.00 A.M. from her tuition but on 05.11.2019, she did not return home till the evening whereas she went out of her home at about 06.30 A.M. P.W.-1 and P.W-3, the father of the victim and other conducted search in different places of their locality, talked with friends of P.W.-2 and their relatives but P.W.-2 could not be traced out. After three days of missing, P.W.2, the victim talked with P.W.-1, i.e. her mother over the Page 8 of 15 telephone, and she stated that while she was going to the house of her private tutor, two persons arrived with a motorbike and she was lifted in their motorbike. They gagged her mouth and was taken away on the said motorbike. On 10.11.2019, the victim was taken by P.W.-3, the father of the victim from Office Tilla, Dharmanagar, where she had come by an auto rickshaw from Huplong. From the evidence of P.W.1, the mother of the victim, P.W.2, the victim, and P.W.-3, the father of the victim, it is revealed that Jowel Nath and another person on 05.11.2019 in the morning forcibly enticed away the victim from Padmabill from the way to the house of her tutor and took her to the house at Huplong. Both P.W.1 and P.W.-2 in their evidence revealed that the accused-appellant herein forcibly put vermillion and couch to the victim and kept her confined in his house. The appellant repeatedly had sexual intercourse with her. Both P.W.1 and P.W.2 revealed that the accused herein kept the victim in his house at Haplong for 4/5 days and they remained there as husband and wife. The evidence of P.W.2 revealed that she got introduced to the accused through her class friend and after one month of her introduction, to the accused, he proposed her to build up a relationship with him, which she denied. In the evidence of P.W.2, it is revealed that on 05.11.2019 in the early morning Page 9 of 15 while she was going to the house of her private tutor at Padmabil, the accused appellant herein and one Sanjib Nath(now deceased) suddenly arrived with a motorbike and forcibly lifted her on their motorbike by gagging her mouth. The motorbike was driven by Sanjib Nath. They took her to the house of the accused appellant herein. P.W.2 also revealed that the accused-appellant herein lives with her mother in his house at Haplong where the victim was confined for days together. The accused herein forcibly put vermilion and conch on the victim and created an impression that the victim is his married wife. P.W.-2 further revealed that she was kept in confinement in the house of the accused in Huplong for five days and the accused herein shared bed with her and they had repeated sexual intercourse during the period of her stay in the house of the accused at Huplong. The evidence on P.W.1, P.W.2, and P.W.3 reveals that during the stay at the house of the accused- appellant herein, the victim girl came to know that the accused herein is a married man having a living spouse and three children who were living separately from him. The evidence of P.W.1 revealed that when the victim came to know that the accused-appellant is a married man, the victim did not agree to stay with him and left his house and came to Dharmanagar boarding on an Auto rickshaw. Thereafter, she narrated the Page 10 of 15 entire incident to her parents. It is revealed from the evidence of P.W.-1 and P.W.3 that they lodged the complaint against the accused herein and ejhar was prepared by one Amulya Kr. Das (P.W.11) as per the version of P.W.1. It was submitted to the police by P.W.1 after putting her signature on it.
15. The evidence on P.W.1, the mother, P.W.2, the victim, P.W.3, the father of the victim, and P.W.10(Investigating officer) reveals that the victim was examined by a Medical Officer (P.W.8) and her birth certificate was seized by P.W.10 (Investigating officer) along with the conch given by accused Jowel Nath. It is revealed from the evidence of P.W.2 corroborated by P.W.3 that the victim was also produced before the Court wherein her voluntary statement was recorded by a Magistrate as per her version. She therein stated that she studied in Class-IX and her date of birth is 21.04.2005. It was revealed from the evidence of P.W.8 (Dr. Sudipa Biswas) that the victim stated to her that the accused was previously known to the victim and they used to chat frequently over the telephone. Finally, the accused on 05 th November 2019 enticed her away from a place on the way to the house of her private tutor to marry her. Accordingly, he married her in his home and had sexual intercourse with her. It Page 11 of 15 is further revealed from the witness of P.W.8 that subsequently, while the victim came to know that the accused was a married person having children who were living with his wife in her parent's house, P.W.2 on 10th November talked to her parents over the telephone and reported the matter of her missing and going with the accused for which the subsequent complaint was lodged.
16. The evidence of P.W.8 (Dr. Sudipa Biswas) reveals that on examination, she found the hymen of the victim was torn and old healed tear was present over hymen. After examination, she opined that sexual harassment cannot be ruled out which is also supported by the testimonies of the prosecution witnesses inclusive of the victim towards the commission of the penetrative sexual offence. The evidence of P.W.3, revealed that the accused and the mother of the accused went to the house of P.W.3, the father of the victim, and asked him to hand over his daughter to them as her marriage has already been solemnized with the accused. Evidence of P.W.5 reveals that on 18.12.2019, as per the direction of S.I, Gurupada Debnath, she recorded the statement of P.W.2, the victim under Section 161 of Cr.P.C. as per her version.
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17. Evidence of P.W.6 (Dr. Rahul Chandra Saha) and P.W.10, the I.O reveals that P.W.6 received the birth certificate of the victim in connection with the present case for authentication. Upon verification of the said birth certificate of the victim, it is revealed that it is genuine and her date of birth is 14.04.2005. The defence failed to rebut the evidence, though the witness did not mention the date of receipt of the certificate for authentication. Evidence of P.W.7 (Dr. Kallol Biswas) reveals that the accused herein has been examined on 19.12.2019 for determination of his potency and the medical officer after examination opined that there is nothing to suggest that the accused is not capable of performing sexual act in ordinary way. The evidence of P.W.9 (Sri Bir Kishore Tripura) reveals that upon receipt of written ejahar of P.W.1, he registered Panisagar P.S. Case No.2019 PNS 071 under Section 366A/376(3) of IPC read with Section 4 of the POCSO Act. It is further revealed from the evidence of P.W.10, the I.O. that during the investigation, he talked with the victim and recorded her statement under Section 164(5) of Cr.P.C. He also arrested the accused herein and forwarded him before this Court observing all the formalities. P.W.10, also revealed that on completion of the investigation, he submitted the charge sheet against the accused herein and one Sanjib Nath for the Page 13 of 15 commission of offence punishable under Section 366A/376(3) of IPC and Section 4 of the POCSO Act.
18. From the cross-examination of the witnesses nothing material could be revealed.
19. From the statement of P.W.2, the victim-girl herein, P.W.-8, the Doctor who examined the victim-girl and other witnesses, it is found that the accused-appellant herein is known to the victim. The victim has voluntarily stayed with the accused person herein for a few days in his residence. They had physical relations and lead marital life as husband and wife. It is hard to believe that the accused person herein along with his one friend gagged cloth in the mouth of the victim by force and kidnapped her on a two-wheeler. This is not a realistic allegation and this Court is not inclined to accept the version that the victim girl was kidnapped by the accused person herein along with one of his friends by force gagging cloth in her mouth.
20. Hence the allegation made by P.W.-2 and P.W.-3 under Section 366A of IPC against the appellant herein is not made out. Accordingly, the conviction of the accused-appellant Page 14 of 15 to the extent passed under Section 366A by the Court below in impugned judgment dated 01.09.2021 is set aside.
21. Further as per the evidence of P.W.-1, the mother of the victim, P.W.2, the victim herself, and P.W.3, the father of the victim, the victim has proved her date of birth i.e. Exbt-3. According to the evidence as adduced by P.W.1, it is mentioned that the victim girl is a minor aged about 15 years and studying in Class-IX. It is further revealed that upon verification, P.W.6, Dr. Rahal Chandra Saha found the birth certificate of the victim genuine. The accused person herein being a married person and having 3(three) children had suppressed this fact and he developed intimacy with the victim-girl who was a minor. The accused-appellant herein took the victim and she accompanied him. The victim girl stayed with accused-person in his house for four to five days. The victim girl herein, being a minor of below 16 years, it is not just on the part of the accused person herein to have sexual intercourse with the victim girl.
22. In the evidence of P.W.3, the father of the victim-girl, it is stated that " accused Jowel Nath and his mother came to my house after return of my daughter and his mother stated to me that they want to take back my daughter Page 15 of 15 as her marriage has already been solemnized with the accused Jowel Nath." Since the accused-appellant herein was already married and have minor children, the act of performing of marriage between the accused-appellant herein and the victim girl was not materialized. Hence this attracts Section 4 of the POCSO Act and Section 376(3) of IPC. Accordingly, the conviction of the accused person under Section 376(3) of the Indian Penal Code as passed by the Court below is affirmed.
23. With the above observation and direction, we affirm and upheld the judgment and order of conviction and sentence dated 01.09.2021, passed in Special(POCSO)02 of 2020, by the learned Special Judge(POCSO), North Tripura, Dharmanagar, Tripura with the modification as indicated above. The appeal is accordingly dismissed with the above terms.
24. Consequently, pending application(s), if any also stand closed.
Send back the LCRs.
JUDGE JUDGE
suhanjit