Tripura High Court
Shri Kishore Debbarma vs The State Of Tripura on 8 April, 2019
Equivalent citations: AIRONLINE 2019 TRI 28
Author: S. Talapatra
Bench: S. Talapatra
Page 1 of 20
HIGH COURT OF TRIPURA
AGARTALA
CRL.A. No.30 of 2017
Shri Kishore Debbarma,
son of Shri Sakhi Chandra Debbarma,
resident of Ban Bazaar,
P.O. Ban Bazaar,
P.S. Champahour,
District: Khowai Tripura
----Appellant(s)
Versus
The State of Tripura,
notice to be served through
the learned Public Prosecutor,
High Court of Tripura,
Agartala, West Tripura
----Respondent(s)
For Appellant(s) : Mr. J. Bhattacharjee, Adv.
Mr. S. Ghosh, Adv.
For Respondent(s) : Mr. A. Roy Barman, Addl. P.P.
Date of hearing : 29.03.2019
Date of judgment
& order : 08.04.2019
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order
This is an appeal by the convict, hereinafter referred to as the appellant, from the judgment and order of conviction and sentence dated 16.09.2017 delivered in Special (POCSO) 27 of 2015 by the Special Judge, Unakoti Judicial District, Kamalpur. The appellant has been convicted by the said judgment under Page 2 of 20 Section 12 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act). Pursuant to the said judgment of conviction, the appellant has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.20,000/- (twenty thousand) with default stipulation.
02. The prosecution was launched against the appellant in terms of the complaint dated 05.04.2014, made to the Officer-in- Charge, Manu police station, Longthorai Valley, Dhalai disclosing that her daughter (name withheld for protecting her identity) used to take private tuition from the appellant. About 7-8 months back from day of filing the complaint when her daughter went to take tuition, the appellant closed the door from inside became undressed, asked the victim to touch his penis and to get undressed. It has been further alleged that he had to sit close to the victim so that she could hold penis. By the abrupt turn of events, the victim felt scared and started weeping. Thereafter on 02.04.2018 on Wednesday, the victim again went to his room for tuition at about 5 p.m. when the appellant repeated the similar act. As a result, the victim broke out tears and left the place. For outraging modesty of her daughter, the complaint was filed by the complainant namely Rama Debbarma. After the incident of 02.04.2018, when the complainant persuaded the victim to go to take tuition she declined to go for taking tuition. Then, the complainant in order to send her to take tuition had beaten up her [the victim]. At that time, the victim divulged what she had faced. Page 3 of 20 The victim had also stated to the complainant that she was warned by the appellant that if she had disclosed the said incident to anyone, then she would definitely be unsuccessful in the examination. On the basis of the said complaint, Manu P.S. Case No.05/2014 under Section 354(A) and 506 of the IPC read with Section 10/12 of the POCSO Act was registered and taken up for investigation.
03. On completion of the investigation, the police filed the final report chargeshetting the appellant. On taking cognizance the Special Court, Unakoti Judicial District, Kamalpur framed the charge under Section 354(B) of the IPC and Section 8 of the POCSO Act. The appellant pleaded innocence and submitted that the victim had lied and such lie is manifest on the face of the records. In order to substantiate the charge, the prosecution had adduced as many as 12 witnesses including the victim [PW-2]. In addition to oral evidence, the prosecution admitted six documentary evidence including the birth certificate of the victim [Exbt.6].
04. To rebut the evidence of the prosecution, the appellant himself was examined along with two other witnesses [DWs- 1-3]. On recording of the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. when the appellant reiterated his innocence by stating that the incriminating evidence as surfaced is false and is to frame him without any basis. After analysing the evidence, the Special Court returned the judgment Page 4 of 20 of conviction under Section 12 of the POCSO Act. During imposing the sentence, the Special Judge, Unakoti District has categorically observed as under:
"In the case at hand from the prosecution evidence the facts are proved only that accused showed his penis to the Victim-X and he also asked her to show her vagina. A careful analysis of the evidence of Victim-X I am of the opinion that there is absence of elements of section 354B of IPC and also the elements of section 8 of POCSO Act, 2012. In the prosecution evidence there is no evidence of using criminal force or assault as define respectively under section 350 and 351 of IPC. Further, to constitute the offence under section 8 of the POCSO Act there is necessary elements of sexual assault as define under section 7 of the said Act. According to section 7 POCSO Act to constitute sexual assault there must be evidence that accused with sexual intend 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. In the case at hand there is no evidence that accused touches any part of the body of the victim-X or compelled to touch his any of the organ as described under section 7 of POCSO Act. So, the facts which are proved in the instant case does not made out the offence under section 8 of the POCSO Act."
05. But on careful perusal of evidence, the Special Court has observed that the appellant has committed sexual harassment within the meaning of Section 11 of the POCSO Act. Section 11 of POCSO Act declares the acts to be held as the sexual harassment. Section 11 of POCSO Act catalogues the following acts:
"A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor."Page 5 of 20
06. According to the Special Court the prosecution has successfully established the sexual harassment in terms of Section 11 of the POCSO Act which culpable act is punishable under Section 12 of the said Act. In exercise of the power conferred by Section 222 of the Cr.P.C. the appellant has been convicted under Section 12 of the POCSO Act considering the said Act as a minor offence vis-a-vis the offence as defined under Section 8 of the POCSO Act. Accordingly, the appellant has been convicted by the impugned judgment and sentenced to suffer the imprisonment and fine as stated.
07. Mr. J. Bhattacharjee, learned counsel has quite emphatically submitted that the age of the victim child has not been proved following the canons of law. Moreover, the entire allegation is unfounded inasmuch as there is a huge gap between two episodes as alleged in the complaint [which has not been admitted in the evidence]. Even though, the complaint has not been admitted in the evidence, but the complainant [the informant] has deposed in the trial by stating that the victim used to go to take her private tuition to the appellant at about 4 p.m. in the afternoon. Thereafter she has stated that in the afternoon of 03.04.2014 the victim expressed her extreme reluctance to go to the appellant for taking her private lessons. On her further query she started weeping. On her request, the complainant closed the door. Then, she divulged that sometimes the appellant used to compel her to molest his penis by her hand. Lastly, he did so on Page 6 of 20 02.04.2014. PW-1, Rama Debbarma has stated in the trial that they waited for substantive time for lodging the complaint in the police station as they expected the wife of the appellant (namely Rina Debbarma) would approach her to discuss the matter but she did not approach and for that reason on 05.04.2014, she lodged the case in the Manu police station. One Anjati Debbarma wrote the ejahar. The scribe did not appear in the trial. The complainant identified her signature on the ejahar [Exbt.1].
In the cross-examination, significantly PW-1 has stated that there are four rooms divided by partitions in the same tenament. It was of pucca wall and tin roof. Kangsaram Reang and Ranibala Debbarma were the tenants in a nearby house. The appellant had only one room under his possession. Her daughter was a student of class VIII at the time of incident. Banajit Tripura and Sourav Chakraborty were taking tuition with the victim. She had thereafter stated that 'It is a fact that Banajit and Sourav used to take private lesson from Kishore in the same batch with her daughter'. She had voluntarily stated that her daughter used to go more often than Balajit and Sourav. She has asserted as follows in her cross-examination:
"I stated in the ejahar as well as before the Magistrate that Kishore used to compel my daughter to molest his penis by her hands. It is not a fact that my daughter did not tell me that Kishore never asked my daughter or compel my daughter to molest or touch his penis. It is not a fact that I did not wait for the wife of Kishore to approach me and that is why there was delay in lodging FIR."
08. The most vital witness in the array of the prosecution witnesses is PW-2 [the victim]. She has narrated the first incident. Page 7 of 20 The appellant released one boy of class-IX who used to take private tuition, ahead of her. One day by closing the door the appellant got undressed by removing gamcha and stated her that 'it was removed accidentally'. She hid her face behind her book, out of shame. He inquired with her whether she saw anything but out of shame she replied in the negative. Now and then, the appellant used to sit beside her and molest his own penis with a request to her to show her vagina as he had shown his penis to her. She refused. One day he touched the upper portion of her body. He used to threaten for not divulging anything to her mother, otherwise her mother and her father would die. Initially, she believed in such talisman. In the first week of April, 2014, on one afternoon she refused to go to the private tuition. At that time her mother had insisted her to tell the reason behind her not going to take private tuition. She stated, in response, the entire episode. Her father was informed and mother filed the case. In the cross-examination, she had admitted that the appellant is a teacher of Machli school whereas she was a student of Manu Girls H.S. School. She has stated in the trial that she narrated the episode of 'un-wearing of gamcha' to the Magistrate and of her hiding face behind the book. She has further stated that the appellant used to sit by her and molested his own penis. She stated to the Magistrate one day, the appellant touched the upper portion of her body. She has stated to the Magistrate that the appellant had threatened her if any episode is leaked out to her Page 8 of 20 mother he would make it sure that the victim did not get promotion to the next class i.e. class-IX. She has denied suggestion that there was no such act which can be called 'sexual harassment'.
09. PW-3, Margin Krishna Tripura has stated that he was also a tenant of the same hutment with the victim and her mother. The appellant was the other tenant. He has stated that wife of the appellant used to go to her parental house off and on. The victim used to take private tuition from the appellant. In the afternoon of 4th April, 2014, Rama [the mother of the victim] had approached her to communicate that on 02.04.2014 or on some prior occasions, the appellant used to inflict sexual assault and harassment by showing his penis. He has simply stated that she advised Rama Debbarma [PW-1] to take shelter of law. He denied the suggestion that no such sexual assault or harassment did take place in the house of Safikur Rahaman, the owner of the said tenement.
10. PW-4, Binapani Debbarma was present when the police visited the house of the appellant and arrested him. PW-1 informed her that the appellant was a private tutor and he had shown his penis to her daughter. During that time the husband of Rama [PW-11] was posted at Dharmanagar. PW-4 has stated further in her cross-examination that on 02.04.2014 the wife of the appellant was present in the house. She has stated that she used to meet Rama Debbarma [PW-1] almost everyday. She Page 9 of 20 denied the statement that Rama Debbarma [PW-1] did not tell her the appellant showed his penis to her daughter.
11. PW-5, Kishore Debbarma has stated that one lady Police Officer visited their rented house and arrested the co- tenant, another Kishore Debbarma. PW-1 informed him that Kishore did 'nasty things' to her daughter. Beyond that he did not state anything.
12. PW-6, Kangsharam Reang has stated that police visited the rented house of PW-1 and seized one original birth certificate of the victim and he stood the witness to that seizure and in acknowledgment thereof he put his signature on the seizure list [Exbt.4].
13. PW-7, Ranibala Debbarma has stated in the trial that she was a tenant of nearby hutment. One day one police officer visited the house of PW-1 and seized one birth certificate of her daughter. She has witness to such seizure and she has identified her signature on the seizure list.
14. PW-8, Pankaj Debnath denied any knowledge about the occurrence. PW-9, Lilabati Rahaman has stated that the appellant is a school teacher whereas the other Kishore Debbarma is a Constable of Police.
15. PW-10, Kallol Purakayastha is the Assistant Teacher of Prikarma Tuisa H.S. School. The appellant is also an Assistant Teacher in that school. He stated nothing which is relevant in the context of the case.
Page 10 of 20
16. PW-11, Madan Debbarma is a Fire Service Personnel. He visited the hut of Safikur Rahaman where his family used to reside. His wife, PW-1 informed him that the appellant by removing his 'gamcha' showed his penis to the victim when she went for tuition and asked her to get undressed. The victim get scared and hurriedly left the hut of the appellant. On the following day the victim showed reluctance to go for taking the tuition. The victim was scolded by PW-1. Under persuasion the victim divulged that 7-8 months prior to that day, the appellant showed his penis to the victim and also asked the victim to show her vagina. During that time, the appellant's wife was away from home. The victim was further scared by stating that if she divulged the 'conduct' to anyone the victim will not allow her to get promotion to the next class or her family would face evil hours. On such revelation, his wife PW-1 lodged the complaint to the local police station on 05.04.2014 narrating the occurrence what PW-1 had heard from the victim.
17. According to PW-11 as stated by him in the cross- examination that the victim was subjected to the sexual harassment on 02.04.2014 and before that another incident of sexual harassment occurred 7/8 months prior to that. The daughter did not state anything to him. But one day his wife [PW- 1] informed him over telephone that in the afternoon of 02.04.2014 the appellant did sexually harass their daughter and also on previous occassion 7/8 months prior to that day. Even PW- Page 11 of 20 1 informed him of the threat posed by the appellant. He denied the suggestion, contrary to his statement made in the examination-in-chief.
18. PW-12, Smt. Shiuli Das, is the Investigating Officer who arranged the examination of the victim under Section 164(5) of the Cr.P.C. As the investigating officer she had seized the birth certificate of the victim by preparing a seizure list. However the original birth certificate was released by the Magistrate on execution of a bail bond. She has further narrated how she conducted the investigation by visiting the place of occurrence and preparing the hand sketch map with index etc. However the original birth certificate [Exbt.6] was later on reproduced in the record. PW-12 has stated that having been prima facie satisfied by the evidentiary materials collected in the investigation she had filed the chargesheet against the appellant under Section 354A/506 of the IPC along with Section 12 of the POCSO Act. She has denied that during examination no fact to the effect that Banajit Tripura and Sourav Chakraborty used to go for private tuition along with the victim to any private tutor has surfaced. She has denied that her investigation was perfunctory and the evidence that she collected is nothing to do with the relevant fact. She has also asserted in the trial that there was a football tournament on 24.08.2013 and 26.08.2013 at Manughat class XII school ground. The investigating Officer has categorically stated that she did not find any evidence from the witnesses that Page 12 of 20 accused touched the private parts of the victim girl. She did not mention in the case diary or did not ascertain how many days in a week the victim used to go to accused for taking private tuition.
19. After the prosecution evidence was recorded the appellant was examined under Section 313 of the Cr.P.C. when he stated that the evidence, as led by the prosecution, suffered from falsification. However the appellant examined himself as DW-1. He has stated that on 04.04.2014 at 10 a.m. the police of Manu police station called him. He went there and learnt that PW-1 had filed a case against him. The police arrested him in connection with the said case. He used to stay in the house of Md. Safikul Rahaman with his wife Rina Debbarma and his son Rikon Debbarma whose age at that point of time was only 8 months. He took rent of one single hut of Md. Safikur Rahaman as he was posted in Tuikarma Tuisa H.S. School as a Post Graduate Teacher. He has admitted that he used to give tuition to three students namely Banajit Tripura, Sourav Chakraborty and the victim. Banajit and Sourav were the students of class-IX whereas the victim was the student of class VIII. They used to go to his house at about 5 to 6.30 p.m. and take the tuition. He has asserted that he used to give tuition to those students on wearing the formal dress. According to him, the allegation as brought are unfounded.
20. DW-2, Smt. Rina Debbarma is the wife of the appellant. She has stated that her husband used to live as the tenant in the house of Md. Safikur Rahaman. In the same tenement Rama Page 13 of 20 Debbarma, mother of the victim girl used to stay. Sourav Chakraborty, Banajit Tripura and the victim used to take tuition from her husband. She has stated that Sourav and Banajit told her that they came to know from the victim that as the appellant had rebuked her for her less attention she made the allegations to her mother to avoid tuition from the appellant. In the cross- examination, nothing material could be derived from this witness.
21. True it is that, Banajit Tripura, DW-3 was examined, and so was done for obvious reason. DW-3 [Banajit Tripura] has stated that he along with the victim used to take tuition at about 5.00 hours for one and half an hour. On 04.04.2014 in the evening he came to know from the police of Manu P.S. that appellant has been arrested. On 05.04.2014 itself Banajit went to the house of the victim along with Sourav Chakraborty to ask the victim why she had leveled such a wild and false allegation against their teacher. In reply to their question she had told them that the teacher was very tough and he used to rebuke her and for that reason, she made the false allegation to her mother to avoid tuition from him. He has also asserted in the trial that he communicated the conversation that he had with the victim to the wife of the appellant [DW-2]. Thereafter all of them meaning Sourav himself and DW-2 went to the police station and reported the same to the lady Officer. The Police Officer had stated that if they were required for any purpose she would call them. But the police did not call them at any point of time. In the cross- Page 14 of 20 examination he denied that he was not taking tuition from the appellant or that the victim did not tell him that she had brought the false allegation against the appellant.
22. The statements of PWs 1 and 2 were also recorded under Section 164 (5) of the Cr.P.C. The statement of the victim was brought in the evidence as Exbt.3 series. In that statement PW-2 has categorically stated that one boy used to study with her in the tuition but the appellant used to ask him to leave. Thereafter he used to start to exhibit his sexual organ to her and asked her to show her organ. He used to realise assurance that she would not reveal anything to anyone. He used to scare her by stating if she disclosed anything to anyone her parents would die.
23. Mr. Bhattacharjee, learned counsel appearing for the appellant has submitted that the victim has constructed lie and such lie is debunked by the evidence led by the prosecution. He has stated that in the cross-examination, PW-1 has categorically stated that Banajit and Sourav used to take private tuition from Kishore in the same batch with her daughter. But the victim has not accepted that fact, on the contrary she had brushed the story with more colour. Another aspect Mr. Bhattacharjee, learned counsel has highlighted is that there was no separate room for giving the tuition. It is the single room where the appellant used to give the tuition to the students. Moreover, the room next to the appellant is the room of the PWs 1 and 2. One witness as noticed Page 15 of 20 has stated on the very day of occurrence, the wife of the appellant was in that hut.
24. From the other side, Mr. A. Roy Barman, learned Addl. P.P. has forcefully submitted that the prosecution has proved the case of sexual harassment within the meaning of Section 11 of the POCSO Act inasmuch as it has been demonstrated by the legal evidence that the appellant exhibited part of his body with intention that shall be seen by the victim. According to Mr. Roy Barman, learned Addl. P.P., no interference is called for in the impugned judgment.
25. Mr. Bhattacharjee, learned counsel appearing for the appellant while making his reply to the said submission of Mr. Roy Barman, learned Addl. P.P. has relied on a decision of the apex court in Rameshwar vs. State of Rajasthan reported in AIR 1952 SC 54 to contend that the corroboration of the statement of the victim in such case is essentially required. In Rameshwar (supra) the apex court has dealt with Section 118 and 157 of the Evidence Act. As observed, the question of competency is dealt with in section 118 of the Evidence Act. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It is observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is Page 16 of 20 given, therefore, unless the Oaths Act adds additional grounds of incompetency section 118 must prevail. In Rameshwar (supra) the apex court had occasion to observe as follows:
"I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit- ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evidence is admissible. In the Privy Council case which I have just cited, their Lordships said-
"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."
[Emphasis added] It is to be noted at this juncture that trial Judge did not followed that procedure of deciding the competence of the girl who is no doubt is of the 14 years of age. But the oath was administered to her under the Oaths Act, 1969.
26. The other decision that has been relied by Mr. Bhattacharjee, learned counsel is titled Radhakrishna Nagesh vs. State of Andhra Pradesh reported in (2013) 11 SCC 688. In Radhakrishna Nagesh (supra) the apex court has observed that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual Page 17 of 20 assault so as to implicate an innocent person. Such a view has been expressed by the judgment of the apex court in the case of State of Punjab v. Gurmit Singh reported in (1996) 2 SCC 384 and has found reiteration in Rajinder @ Raju v. State of H.P. reported in (2009) 16 SCC 69. In Radhakrishna Nagesh (supra) the apex court has restated the principle of Rajinder's case where it was observed that:
"In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
[Emphasis added]
27. According to Mr. Bhattacharjee, learned counsel this report does remotely connect to the present context of the case. The observation of the apex court is definitely is an observation of relativity inasmuch as in all circumstances, if there is absence of evidence, the victim cannot be blindly relied, if court finds that she had tendency to exaggerate or to state with a purpose.
28. Having scrutinized the records this court finds that the victim [PW-2] has made three important statements viz. she used to attend the tuition with one boy of class-IX but she did not disclose the name of the boy. The victim has stated that the appellant had threatened that if she did reveal anything to anyone Page 18 of 20 she would not be promoted to the next class. But in the statement recorded under Section 164(5) of the Cr.P.C. such allegation is not found there so she stated exaggerating thing, in order to lend credence. On the contrary, there surfaces altogether a different allegation on cautioning her not to reveal to anyone and if she revealed her parents would die. Regarding the threat relating to the promotion is improbable inasmuch as the victim was a student of class VIII of Manu Girls Higher Secondary School whereas the appellant was a teacher of Machli school. That apart, the statement of the victim that one day he touched the upper portion of her body did not find place either in the complaint filed by PW-1 or in the deposition of PW-1. Even PW-1 has grossly exaggerated the statement when she has stated in the cross-examination that she stated in the ejahar and in the statement recorded under Section 164(5) that the appellant used to compel her daughter to molest his penis by her hand. Those are unfounded, as revealed by the investigation officer. The said statement was not available in the ejahar [Exbt.1] not in her statement recorded under Section 164(5) of the Cr.P.C. Moreover, for 7/8 months if the appellant was behaving that way it is only expected that the victim would have told her mother much earlier. In this perspective, this court finds a serious doubt about the culpable state of mind [see Section 30 of the POCSO Act] from the evidence recorded in the trial. That apart, the statement of DW-3 which has been corroborated by DW-2, cannot be brushed aside without giving due value. DW-3, Page 19 of 20 the other student has categorically stated that the victim told him that the appellant was very tough in handling her and she would avoid tuition from him and that was the reason why she brought those false allegations against the appellant. In the cross- examination, the meeting of DW-3 with the victim has not been challenged.
29. Having all the joints taking together, this court is of the view that definitely there was a serious furore and PW-1 reacted to the story told by PW-2. But her one statement in the trial court stokes doubt. The statement of PW-1 reads as follows:
"I did wait for Rina to approach me for discussion since Kishore is her husband but she did not approach me as such, on 05.04.2014 I lodged a case with Manu PS."
But nowhere she has stated the purported allegation was brought to the notice of DW-2 by PW-1 at any point of time. Reason therefore as provided in that manner is a reason for the delay is quite unbelievable. Moreover, DW-2 and DW-3 after getting the knowledge from the victim about the real reason behind her conduct had reported what DW-3 had learnt from the victim to the police officer. But the Police Officer did not examine them. Their statement might not go along with the prosecution design. If the statements of PWs 1, 2 and 11 read together those will be perforated by incongruities. On the other hand, the appellant has proved absence of culpable state of mind. Hence, no presumption in this regard be taken against him. It has to be stated that this court is reluctant to believe the statement of PW-2 that for 7/8 months she suffered the same conduct of the Page 20 of 20 appellant in the situs of crime. Even that was not allegation in the complaint. Inconsistencies on the face of the records make the prosecution case largely incredible to survive the test of reasonable doubt. The impugned judgment and order is therefore interfered with and set aside on benefit of doubt. The appellant is discharged from the criminal liability or acquitted from the charge under Section 12 of the POCSO Act. As the appellant is on bail, his sureties are discharged from their respective liabilities.
In the result, this appeal stands allowed.
LCRs be sent down forthwith.
JUDGE Moumita