Tripura High Court
Shri Ajoy Bahdur Soner vs The State Of Tripura on 16 April, 2021
Equivalent citations: AIRONLINE 2021 TRI 197
Author: Arindam Lodh
Bench: Arindam Lodh
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THE HIGH COURT OF TRIPURA
AGARTALA
CRL A 42 OF 2019
Shri Ajoy Bahdur soner,
Son of Shri Man Bahadur Soner of Dewanpasa,
Ward No.4, PS-Dharmanagar,
District-North Tripura.
.... Appellant
- Vs -
The State of Tripura,
....Respondent
BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For the appellant : Mr. A. Nandi, Advocate For the respondent : Mr. Sumit Debnath, Additional Public Prosecutor.
Date of hearing and : 16.04.2021
date of delivery of
Judgment & Order
Whether fit for reporting : NO
Judgment & Order (Oral)
This is an appeal against the judgment and order of conviction and sentence dated 31.08.2019, passed by the learned Special Judge (POCSO), North Tripura, Dharmanagar in Case No.Special (POCSO) 12 of 2018 whereby and whereunder the appellant has been convicted and sentenced to suffer rigorous imprisonment for three years along with fine of Page 2 `10,000/- with default stipulation for commission of offence under Section 363 of the Indian Penal Code (for short, IPC) and also to suffer rigorous imprisonment for three years along with fine of `10,000/- with default stipulation for commission of offence under Section 8 of the Protection of Children from Sexual Offences Act (POCSO) 2012. Both the sentences were directed to run concurrently.
2. Briefly stated, one Shri Rajib Shyam, PW-1, the father of the victim lodged a complaint to the Officer-in-Charge, Dharmanagar Women Police Station, North Tripura stating inter alia that on 25-10-2017 last at around 10:30 am, while his daughter was going to school, the accused Ajoy Bahadur Sonar took her on a private vehicle from near Radharaman Ashram (Padmapur). His minor daughter was a student of Class-VIII. He mentioned the registration No. of the vehicle as TR02-F-0716. Panchayat Pradhan of Dewanpasha and Radhapur along with other people rescued his daughter after they got that news. This was a pre-planned kidnapping by the accused Ajoy Bahadur Sonar who molested his daughter in the vehicle. Thinking about the future of the girl, filing of the ejahar got delayed.
3. On the basis of said complaint, the O.C. of the Police Station registered a case under Section 363 of IPC and Section 8 of the POCSO Act against the accused. Investigation was carried out. During Page 3 investigation, the investigating officer examined available witnesses and recorded their statements under Section 161 of CrPC. The statement of the victim girl under Section 161 of CrPC has also been recorded. Thereafter, being prima facie satisfied, the IO submitted charge-sheet against the accused under Section 363 of IPC and Section 8 of the POCSO Act.
4. The learned trial court on receipt of the charge sheet, framed charges against the accused under Section 363 of IPC and Section 8 of the POCSO Act.
5. In course of trial, as many as 9 witnesses were examined and cross-examined. The school certificate [Exbt.8] was seized for determination of the age of the victim girl. Also the birth certificate [MO-1] of the victim girl was seized.
6. At the closure of recording prosecution evidence, the learned Special Judge examined the accused under Section 313 of CrPC, when he was noticed about all the incriminating evidences as surfaced against him to which he denied all the allegations levelled against him by the prosecution witnesses and claimed that he has been falsely implicated in this case.
7. Learned Special Judge after hearing the arguments advanced by the learned counsels appearing for the parties recorded the findings of Page 4 guilt against the accused-appellant and accordingly convicted and sentenced the accused-appellant as aforestated.
8. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the convict-appellant has preferred the instant appeal challenging his conviction and sentence as stated here-in- above.
9. I have heard Mr. A. Nandi, learned counsel appearing for the appellant. Also heard Mr. S. Debnath, learned Addl. P.P. appearing for the State-respondent.
10. Mr. Nandi, learned counsel for the appellant has tried to persuade this court that there are material contradictions and omissions emanated from the prosecution witnesses.
On the other hand, Mr. Debnath, learned Addl. P.P. for the State-respondent submits that the prosecution has been able to prove the charges framed against the accused-appellant beyond reasonable doubt.
11. I have considered the rival submissions of the learned counsels appearing for the parties. Also perused the statements of the prosecution witnesses and other material evidences.
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12. PW-1, the informant of the case being the father of the victim girl deposed that at the time of incident his daughter was aged about 16 years and her date of birth was 18.09.2003 and during the year 2017 his daughter used to study in Class-VIII at Padmapur H.S. School. On 25.10.2017 while his daughter was proceeding to her school, on way the accused requested her to board his vehicle to drop her to the school. On such assurance, the victim, his daughter boarded the vehicle but while they reached the school, the accused did not stop the vehicle and it was stopped at the road side of a village. He further deposed that at that time local people had gathered there. Local people asked the accused to open the lock of the door and then the accused opened the door and came out of the vehicle. PW-1 further deposed that at that time suddenly, the accused hold the hands of his daughter and jumped into a nearby pond. Deposing further, PW-1 stated that the accused molested his daughter.
13. PW-2, the victim girl deposed that on 25.10.2017 she was proceeding towards her school on foot. At that relevant time all on a sudden Ajoy, the accused, came with Alto vehicle and asked her to get into the vehicle assuring that he would drop her near to her school. She entered into the vehicle but the accused did not stop the vehicle in front of the school. The accused pulled her when she understood that the accused would not stop the vehicle, then, she raised alarm but it was not audible to Page 6 others as the doors of the vehicle were closed. At that time, the accused pulled her holding her hands inside the vehicle. At last, took her in a village and stopped the vehicle adjacent to the road. In that meanwhile, local people having found the situation rushed to the vehicle and then took out the accused from the vehicle and the accused locked the door of the vehicle from outside and at last he was compelled to open the lock of the vehicle by the local people and then she came out and all on a sudden the accused held her and jumped into a pond. However, the local people rescued her from the pond and then brought her at home. After reaching at home, she narrated the incident to her parents and consequently, the FIR was lodged. She was examined medically. She deposed that at the time of incident her age was 16 years and her date of birth was 18-09-2003. She identified the accused at the dock.
14. PW-4, Smt. Bobita Shyam, being the mother of the victim deposed in the same tune of the victim.
15. PW-5, Sri Nitya Gopal Das, one of the villagers deposed that he along with others detained both the accused and the victim. Thereafter he dropped the victim girl to her house.
16. PW-6, Sri Nirmal Chakraborty also deposed in the same tune of PW-5.
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17. PW-7, Smt. Rinki Debbarma, registered the FIR being the O.C. of the Dharmanagar Women PS.
18. PW-8, Smt. Usha Rani Debnath being the investigating officer deposed that during investigation she examined available witnesses and recorded their statements under Section 161 of CrPC; seized the birth certificate of the victim as well her school certificate relating to the age of the victim. She also seized the Alto vehicle bearing registration No.TR02- F-0716 on the same date.
19. PW-9, Smt. Swarna Debbarma being the subsequent investigating officer deposed that she arranged for ossification test of the victim girl and thereafter on the basis of the statements of available witnesses she submitted the charge-sheet.
20. At the outset, I make it clear that the age of the victim girl has been proved beyond reasonable doubt. The parents of the victim as well as the victim herself have categorically stated that at the time of incident she was about 16 years and her date of birth was 18-09-2003. That means, at the time of alleged offence the victim was minor. Now, the question to be decided whether the prosecution has been able to prove the charge under Section 363 of IPC framed against the accused.
21. Section 363 defines thus:-
Page 8 "363. Punishment for kidnapping.--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
22. In the instant case, from the deposition of the victim in respect of the facts and circumstances of the case that on the fateful day at about 10:30 am while she was proceeding to school, she was requested by the accused to board his vehicle. On such assurance, the victim boarded the vehicle, but, though they reached to the school but the accused did not stop the vehicle and went about 5 to 6 km away from the school where he stopped the vehicle adjacent to a road in a village. At that time, villagers rushed to the spot and they asked the accused to come out of the vehicle. Accordingly, he came out. The accused locked the doors keeping the girl inside the vehicle. However, when he was asked to open the doors, he opened the same when the girl came out of the vehicle. Thereafter, suddenly both the girl and the accused jumped into a nearby pond.
23. In my opinion, the circumstances that the victim girl entered into the vehicle of the accused and did not stop the vehicle in front of the school have been proved. However, the statements of the victim [PW-2] that she raised alarm have not been proved beyond reasonable doubt. Another interesting circumstance as garnered from the version of the prosecutrix is that though the vehicle was stopped at the side of the road in a village and the villagers rushed to the vehicle, but, there is no evidence Page 9 that at that time, the girl raised alarm and tried to draw the attention of the villagers that she was kidnapped or abducted by the accused. Even after getting her down from the vehicle, she did not say to anyone of the villagers that she was taken to the place without her wish. But, since it is established that she was minor at that time in my opinion, the charge framed under Section 363 of IPC has been proved against the accused- appellant.
24. Now, coming to the charge levelled against the accused under Section 8 of POCSO Act. The said provision of law is reproduced hereunder for necessary discussions:-
"8.Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."
25. The definition of sexual assault is found under Section 7 of the POCSO act which reads as follows:-
"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."
26. Keeping in mind the aforesaid definitions and having perused the statements of the victim girl, it transpires that the accused had only held the hands of the victim [PW-2]. The accused did not touch any other parts Page 10 of her person. It has not been proved that he intended to assault her sexually. As such, I am of the opinion that the prosecution has failed to establish the charge levelled against the accused under Section 8 of POCSO Act and he is entitled to be acquitted on benefit of doubt. Consequently, the conviction and sentence of the accused-appellant under Section 8 of the POCSO Act stands set aside. Accordingly, the accused-appellant is acquitted of the charge levelled against him under Section 8 of POCSO Act on benefit of doubt.
27. However, I find from the facts and circumstances as discussed here-in-above, that the prosecution has been able to prove the charge against the accused under Section 363 of IPC. Accordingly, the accused is liable to be convicted and sentenced under Section 363 of IPC. Section 363 of IPC prescribes punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. No minimum is prescribed. Further, it is not clear that the intention of the accused was that to kidnap the victim from the custody of her guardian. The allegation of molestation as deposed by the father of the victim has not been proved, rather, this statement of the father, PW-1 has not been corroborated by the victim [PW-2]. It is revealed from the examination of the accused under Section 313 CrPC that at the time of offence he was aged about 25 years old. I have taken into consideration the age of the accused-
Page 11 appellant. Further, at this young age, that was his first offence, there was no such antecedent. There is no evidence that he had committed any offence prior to the present offence. Though the accused was released on bail, but he did not commit any such offence or it has not come to the fore that he disturbed the girl at any point of time even after his release on bail. Perhaps, the act which was committed by the accused-appellant was the outcome of visible youthful fantasies. In my opinion, this is a fit case under the circumstances, to extend the benefit of Probation of Offenders Act in favour of the accused-appellant.
28. Sub-section 10 of Section 360 of CrPC specifically contemplates that the provisions of the Probation of Offenders Act,1958 or the Children Act,1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders are not affected by the Code. Therefore, the provisions of the Code were not excluded by the 1958 Act. Both the provisions, Section 360 of the Code as well as 1958 Act, are applicable in respect of the offenders before the court.
29. Accordingly, I grant the benefit of probation to the convict- appellant for committing offence under Section 363 of IPC. Therefore, in terms of Section 360 of CrPC, it is ordered that the convict-appellant be released on probation of good behaviour and conduct for a period of one Page 12 year on furnishing a bond of `25,000/- (Rupees twenty five thousand) with one surety of like amount before the learned Special Judge (POCSO), North Tripura District, Dharmanagar, within a period of one month from the date of receipt of the certified/authenticated copy of the judgment and order by the appellant on condition that-- (i) the appellant shall not misuse the benefit of his release on probation of good conduct; (2) shall not disturb the victim girl or commit any offence punishable under any Statute or Act and (3) shall not leave the jurisdiction of the court without prior permission of the learned Special Judge (POCSO), North Tripura Judicial District, Dharmanagar within the said probation period.
30. The appeal is, therefore, partly allowed and stands disposed in the above terms.
Send back the LCRs.
JUDGE