Tripura High Court
Sri Ratan Lal Banik vs The State Of Tripura on 20 January, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) NO.19 OF 2019
Sri Ratan Lal Banik,
S/O Sri Rakhal Chandra Banik,
R/O Saradapally, P.S. Kumarghat,
District-Unakoti, Tripura.
........... Appellant(s)
Versus
The State of Tripura
........... Respondent(s)
BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For appellant(s) : Mr. R.G. Chakraborty, Advocate For Respondent(s) : Mr. Sumit Debnath, Addl. P.P. Date of hearing and delivery of judgment & order : 20.01.2022 Whether fit for reporting : NO JUDGMENT & ORDER(ORAL) This is an appeal under Section 374(2) of CrPC against the judgment and order of conviction and sentence dated 25.01.2019, passed by learned Special Judge, Kailashahar, Unakoti Tripura in case No. Special (POCSO) 30 of 2015, whereby and whereunder the appellant has been convicted under Section 4 of POCSO Act, 2012 and sentenced to suffer RI for 8(eight) years and to pay a fine of Rs.10,000/- with default stipulation.
2. Heard Mr. R.G. Chakraborty, learned counsel appearing for the appellant. Also heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent. Page 2 of 11
3. The prosecution case was set in motion on the basis of a complaint lodged by the grandmother (namely Smt. Shila Chakraborty, PW1) of the victim, wherein she stated inter alia that the accused had sexually assaulted her grand-daughter by inserting his fingers to the private part of the victim, since he failed to insert his penis into the private part of her grand- daughter. Her grand-daughter was aged above 6(six) years but below 7(seven) years. As she felt pain, she was taken to hospital on the next day where she was treated for 4/5 days. PW1 made statements before WSI PW19 in the hospital itself orally, which were written by the said police officer.
4. The allegations made in the complaint were investigated after the complaint was registered by the Officer In- charge of the Police Station.
During investigation, statements of the available witnesses were recorded. The victim was taken to the Magistrate for examination under Section 164(5) of CrPC. She was medically examined.
5. After conclusion of investigation, the investigating officer had submitted charge-sheet against the accused- appellant.
6. With the commencement of trial, charges were framed against the accused-appellant under Section 376(2)(i) of the Indian Penal Code as well as Section 4 of the Protection of Page 3 of 11 Children from Sexual Offences Act(POCSO), 2012, which were read over and explained to the accused. The accused-appellant pleaded his innocence.
7. To establish the charge, the prosecution had examined 19(nineteen) witnesses altogether and introduced some documents including the birth certificate of the victim girl.
After conclusion of recording evidence, the accused was examined under Section 313 of CrPC when the allegations made against him by the prosecution witnesses were brought to his notice, but he denied those allegations as false. The accused- appellant did not adduce any evidence on his behalf.
8. Having heard the learned counsels and considering the materials available on record, the learned Special Judge convicted and sentenced the accused as afore-stated.
Hence, this appeal before this Court.
9. Mr. Chakraborty, learned counsel appearing on behalf of the accused-appellant (for short, "accused") has submitted that there are lots of discrepancies in the statements of the prosecution witnesses. Mr. Chakraborty, learned counsel has strenuously argued that PW14 and PW15, though they being the tenants of the same house, were not informed about the incident which is surfaced from their depositions. It has further Page 4 of 11 been submitted that PW15 stated during his evidence that the accused had no adverse report regarding his character.
10. On the other hand, Mr. Debnath, learned Addl. P.P. has submitted that the case of the prosecution has been well proved. Learned Addl. P.P. has strongly defended the findings returned by the learned Special Judge while convicting and sentencing the accused. Mr. Debnath, learned Addl. P.P. has invited my attention to the statements of PW2(victim) and PW1, grandmother(informant) and particularly the evidence of PWs 5, 6 and 7, who are the tenants of the same house and who were informed by the victim about the incident just after the occurrence.
11. Considering the aforesaid submissions, I have gone through the evidences on record and the judgment passed by the learned Special Judge. Having scrutinized the evidence of PW2, the victim, I have found that she appears to be very consistent to her statements made during her examination under Section 164(5) of CrPC and also during her deposition before the Court. She has categorically deposed that during day time of the same day the accused called her and tried to penetrate his penis into her private parts, but he failed to do so. Thereafter, again in the evening, she was called and she was given a chocolate. At that time, the accused told her to suck his Page 5 of 11 penis, and at that time, the accused was also moving his fingers in and around her private part. She cried. Thereafter, the accused had left her. On her cry, PW6 came, when she narrated the incident to her.
Her aforesaid depositions could not be shaken by the defence.
12. Next, I have perused the evidence of PW6, who deposed that she was in her room and watching TV, when she heard the cry of the victim and she came out. On being asked by her, the victim(PW2) told her that the accused, Ratan Banik took her to his room by showing a chocolate and opened his gamcha and asked her to suck his penis. Then, she informed her grandmother, who also came and the victim also disclosed the same to her grandmother.
13. At this juncture, I deem it fit to peruse the evidence of PW1, the grandmother. She deposed that on 07.10.2015, at about 5.30 pm, she was busy in the household work. At that time, one of her tenants, Dipali(PW6) called her and told that the victim was crying. Then, she(PW1) came out and asked the victim what happened to her. On being asked, the victim told that the accused called her by showing chocolate when she was sitting on the verandah of their house and she went as per his call to his rented room where he opened his wearing gamcha and asked her to such his penis. She further deposed that he Page 6 of 11 forcefully entered his penis in her mouth to which she became horrified and started crying and thereafter, the accused ran out from his room. At that time, PW6, Dipali noticed the victim crying. She further deposed that her grand-daughter(victim) felt pain on her private parts. On the next day, she was taken to the hospital and she was treated there for 4/5 days. She further deposed that she lodged the ejahar in the hospital.
Nothing variations are found in her cross- examination.
14. Having gone through the judgment of the learned Special Judge, it comes to light that the learned Special Judge has discussed the evidences of all the prosecution witnesses. I have duly considered the submission of learned counsel appearing on behalf of the accused that PW14 and PW15 were not informed about the incident. In my opinion, since they were not informed about the incident on that night, the prosecution case should not be thrown away. It is the wisdom and satisfaction of the IO as to how he would carry the investigation to establish the offence.
15. I have taken into consideration that the victim had been consistent in her statements that the accused touched her private part and allured her to suck his private part. The said incident was immediately informed to PW6 and PW1. The evidences of PW1 and PW6 can be considered as evidence of res Page 7 of 11 gestae and is relevant under Section 6 of the Evidence Act. In view of the aforesaid direct evidence, non-examination of doctor does not cause any miscarriage of justice to the accused.
16. Lastly, Mr. Chakraborty, learned counsel has urged the Court that the offence committed by the accused should fall under Section 7 of the POCSO Act, which deals with 'sexual assault‟, but not under Section 4 of the POCSO Act.
To find out the merits of the above submission, I may take note of Section 7 of the POCSO Act, which defines 'sexual assault‟. It reads as under:
"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
17. Section 3 defines „penetrative sexual assault‟ which reads as under:
"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the Page 8 of 11 urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
Sub-Section (b) of Section 3 of the POCSO Act envisages that if one inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person, then, it would fall within the purview of definition of 'penetrative sexual assault‟. Section 4 of the Act prescribed „punishment for penetrative sexual assault‟.
Before amendment of Section 4 in the year 2019, the punishment prescribed for committing 'offence' under Section 3 of the POCSO Act, the period of imprisonment was prescribed for a term which shall not be less than 7(seven) years, but, which may extend to imprisonment for life, and shall also be liable to fine. But, after amendment, the period of imprisonment was prescribed for a term which shall not be less than twenty years, if a child is below sixteen years under Section 4(2) of POCSO Act.
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18. Learned Special Judge came to a finding that the accused had touched the vagina of the victim by his fingers with sexual intent. It has not been proved that the penis or any object penetrates the vagina of the victim by the accused. Though doctor was not examined but the investigating officer has categorically deposed that the doctor in his report opined that there was no sign of injury in the private part of the victim girl. Furthermore, it has come to light that the accused had tried to persuade the girl to suck his penis. The victim has not said anywhere that she sucked the penis of the accused on such persuasion.
19. In view of this, in my opinion, in the instant case, the offence comes within the ambit of definition of Section 7 and Section 9 of the POCSO Act and not under Section 3 of the POCSO Act.
Admittedly, the girl is below twelve years. Sub- Section (m) of Section 9 of the Act defines "aggravated sexual assault‟ which reads as under:
"9. Aggravated sexual assault.--(a) xxx xxx--
(b) xxxx xxxx xxxx xxxx
(c) xxxx xxxx xxxx xxxx
(d) xxxx xxxx xxxx xxxx
(e) xxxx xxxx xxxx xxxx
(f) xxxx xxxx xxxx xxxx
(g) xxxx xxxx xxxx xxxx
(h) xxxx xxxx xxxx xxxx
(i) xxxx xxxx xxxx xxxx
(i) xxxx xxxx xxxx xxxx
(k) xxxx xxxx xxxx xxxx
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(l) xxxx xxxx xxxx xxxx
(m) whoever commits sexual assault on a child below twelve years; or
(n) xxxx xxxx xxxx xxxx
(o) xxxx xxxx xxxx xxxx
(p) xxxx xxxx xxxx xxxx
(q) xxxx xxxx xxxx xxxx
(r) xxxx xxxx xxxx xxxx
(s) xxxx xxxx xxxx xxxx
(t) xxxx xxxx xxxx xxxx"
20. Section 10 prescribes 'punishment for aggravated sexual assault‟ and it stipulates that whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
21. In the instant case, learned Special Judge has sentenced the accused to suffer imprisonment for eight years under Section 4 of the POCSO Act. Learned Special Judge has not noticed the period of imprisonment before 2019 since the offence of the instant case took place before the amendment was carried out which came into effect from 16.08.2019. According to Section 4, the period of imprisonment should not be more than seven years. However, since I have recorded a finding that the offence committed by the accused in the case in hand falls within the purview of the definition of Section 9, the minimum punishment should not be less than five years. Page 11 of 11
22. Considering the nature of the offence as committed by the accused, I am not inclined to punish him to suffer maximum punishment as prescribed under Section 10 of the POCSO Act. In my opinion, if the accused is sentenced to suffer imprisonment for a term of five years, then, it would be proportionate to nature of offence. The accused shall also liable to pay fine and a fine of Rs.600/-(rupees six hundred) is imposed upon the accused by this judgment and order, failing which the accused shall suffer imprisonment for further three months.
23. Ultimately, the sentence to suffer imprisonment for eight years under Section 4 of the POCSO Act as imposed by learned Special Judge is modified and reduced to suffer imprisonment for a period of five years along with fine of Rs.600/- taking into account Section 10 of POCSO Act. It is informed at the Bar that the accused has been in jail for last three years. Needless to say, the accused is to serve the remaining period of sentence.
24. With the aforesaid modification of sentence, the instant appeal stands allowed.
Send down the LCRs.
JUDGE