Tripura High Court
Shri Nakul Paul vs The State Of Tripura on 19 September, 2022
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A NO.5 OF 2021
Shri Nakul Paul,
Son of Sri Arabinda Paul,
Profession-Day labor, resident of Pratapgarh,
Near Manashabari, P.O.- Agartala & P.S. East Agartala,
District-West Tripura.
----- Appellant(s)
Versus
The State of Tripura.
----- Respondent(s)
For the Appellant(s) : Mr. S. Lodh, Advocate.
For the Respondent(s) : Mr. S. Ghosh, Addl. P.P.
Date of hearing and delivery of
Judgment & Order : 19.09.2022.
Whether fit for reporting : NO.
BEFORE
HON'BLE MR. JUSTICE T. AMARNATH GOUD
J U D G M E N T & O R D E R(ORAL)
This present criminal appeal has been filed under Section 447 and 354 of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 15.02.2021 passed by the learned Special Judge (POCSO Act), Agartala, West Tripura in Case No. Special(POCSO) 01 of 2018, whereby the learned Special Judge(POCSO), Agartala, Page 2 of 15 West Tripura has convicted the appellant for committing offence, punishable under Section 447 and 354 of IPC and Section 08 of the Protection of Children from Sexual Offences Act, 2012, and sentenced him to suffer 3 months S.I. for committing offence punishable under Section 447 of I.P.C and also sentenced him to suffer 3 years Rigorous Imprisonment and also to pay a fine of Rs.15,000/- for committing offence punishable under Section 354 of IPC, with default stipulation. The appellant herein is also sentenced to suffer Rigorous imprisonment for 3 years and to pay a fine of Rs.15,000/- for committing offence punishable under Section 8 of POCSO Act with default stipulation.
2. The facts of the case in brief leading to this present criminal appeal is that on 12.12.2017, in the afternoon at about 3.00 P.M., taking advantage of the absence of others, the accused-appellant herein trespassed into the house of the informant at Pratapgrah and touched the body of the victim and outraged her modesty. It is also alleged that the accused- appellant herein prohibited the victim from stating anybody about the incident, but on 16.12.2017, after knowing about the same from the victim-daughter, the informant lodged the complaint before the police.
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3. Based on the written complaint of the informant (father of the victim) a case was registered at East Agartala Women P.S. vide No.2017/WEA/091 dated 16.12.2017 under Section 448/354A(2)(3) of the IPC read with Section 8 of the POCSO Act, against the accused-Nakul Paul. In course of the investigation, the I.O. visited the place of occurrence and recorded the statement of the material witnesses under Section 161 of Cr.P.C. The victim girl was forwarded before the Magistrate for the recording of her statement under Section 164(4) of Cr.P.C. At the conclusion of the investigation, the Police submitted the charge sheet having found prima-facie materials against the accused under Sections-448/354(2)(3) of the IPC read with Section 8 of the POCSO Act.
4. On receipt of the police report, learned Special Judge (POCSO), Agartala framed the charge against the accused-appellant herein under Section 447 & 354 of IPC and alternatively under Section 8 of POCSO Act.
5. The accused-appellant after hearing all the matters and contents of the charge, pleaded not guilty and claimed to be tried. Accordingly, Trial was conducted, and to prove the case, prosecution side examined as many as 5 witnesses, namely:-
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1) P.W.1, Smt. Rita Saha(Baishnab), mother of the victim.
2). P.W.-2, victim(name withheld).
3) P.W.-3, Shri Bimal Baishnab, informant and father of the victim.
4) P.W.-4, Shri Suman Baishnab, brother of the victim.
5) P.W.-5, Smti. Jamuna Roy, I.O. of the case.
6. After hearing the parties learned Special Judge(POCSO), West Tripura, Agartala, convicted the appellant as stated above.
7. Being aggrieved and dissatisfied with the impugned judgment and conviction of the sentence dated 15.02.2021, the appellant has preferred this instant criminal appeal.
8. Heard Mr. S. Lodh, learned counsel appearing for the appellant as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent.
9. Mr. S. Lodh, learned counsel appearing for the accused-appellant herein submitted that contradictory statements were given by the prosecution witnesses regarding the place of occurrence of the alleged incident. From the deposition of P.W.-1, it is revealed that just after the alleged incident, the victim narrated the incident to the landlady, Geeta Page 5 of 15 Roy, but the prosecution did not produce her. Further 2(two) eyewitnesses of the alleged incident who were the sister and friend of the victim were also not produced as a witness by the prosecution. Withholding their witnesses creates serious doubt in the story of the prosecution. P.W.-3, the father of the victim stated that he did not take any money from the accused- appellant herein but the mother of the victim i.e. P.W.-1 stated that they used to take money from the accused-appellant.
10. Further to substantiate his argument, learned counsel referred to Para-26, 27 and 28 of the Apex Court Judgment passed in Tomaso Bruno and anr. Vs. State of Uttar Pradesh reported in (2015) 7 SCC 178 dated 01.20.2015 which is reproduced as under:-
"26. The trial court in its judgment held that non- collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made.
27. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act. Under Section 114 of the Evidence Page 6 of 15 Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 (g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party.
28. The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence-CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."
11. He further cited Para-28 of the Division Bench Judgment of this Court passed in Crl.A(J) No.34 of 2019 titled as Sri Lalmalsom Kaipeng Vs. The State of Tripura dated 01.04.2021 which is reproduced herein-under:-
"28. To say more comprehensively, the presumption to be drawn under Sections 29 and 30 of the POCSO Act do not absolve the prosecution of its duty to establish the foundational facts. Prosecution has to establish a prima facie case beyond reasonable doubt. Only when the fundamental facts are established by the prosecution, the accused will be under obligation to rebut the presumption that arise, by adducing evidence with standard of proof of pre-ponderance of probability. The insistence on establishment of fundamental facts by prosecution acts as a safety guard against misapplication of statutory presumption. Foundational facts in POCSO Act include:-
(i) the prove that the victim is a child;
(ii) that alleged incident has taken place;
(iii) that the accused has committed the offence; and
(iv) whenever physical injury is caused, to establish it with supporting medical evidence.Page 7 of 15
Stating thus, learned counsel appearing for the appellant urged this Court to allow this present appeal and set aside the judgment and order of conviction dated 15.02.2021 passed by the Court below.
12. Mr. S. Ghosh, learned Addl. P.P. appearing for the State respondent submitted that the place of the occurrence of the alleged crime is consistent in the statement of the victim girl as well as the mother of the victim i.e. P.W.-1 i.e at the backyard of their house. The fact that the accused person herein has touched the breasts of the victim girl is corroborated by the statement of both the victim girl and the mother of the victim (P.W.-1) which is altogether consistent and is not contradictory anywhere. According to the birth certificate of the victim, the date of birth of the victim is 09.02.2006 so at the time of the alleged incident, the victim was a minor and so there is no issue of consent.
13. On the issue of presumption, learned Addl. P.P has referred to Section 29 of the POCSO Act which is reproduced herein-below:-
"29. Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, Page 8 of 15 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
14. Heard both sides and perused the evidence on record.
15. P.W. 1, the mother of the victim stated that they used to stay in the rented house of one Smt. Gita Roy at Manasha Bari area at Pratapgarh. During that period on 12.12.2017 at about 3,00 P.M, while her victim daughter was playing with her younger sister and her friend in the courtyard, their neighbour, Nakul Paul came to the spot in search of his hen and asked the victim to see if it is present on the backyard of their house. Her victim daughter went to their backyard and the accused- appellant herein touched her breasts and also asked her to come with him stating that he would provide her chocolate. The witness stated that the accused lifted her napkin upwards, which he was wearing. She revealed that at the relevant point in time, she was not at home and that she came to learn about the entire incident from her victim daughter on the next morning, where-after her daughter informed the matter to their landlady.
In her cross-examination, P.W.-1 admitted to have not stated to police that on 12.12.2017, her victim daughter was not playing in their courtyard with her younger Page 9 of 15 sister and friend and that the accused appeared therein in search of his hen and then he allured the victim to give chocolates if she accompanies him. The witness also admitted to have not stated before the police that the victim narrated about the incident to their landlady. Subsequently, she denied the suggestions that the accused did not enter their house on the alleged day or that he did ask the victim to search for his hen in the backyard. She also denied the suggestion that the accused did not follow the victim to their backyard or that he did not touch her breasts nor asked to accompany him to get chocolates. P.W.1 also denied the suggestion that the informant borrowed money from the accused and brought the false case to avoid refund of the amount outstanding.
16. P.W.-2 the victim was tested by a series of questions put to her and on being satisfied with her replies, her statement was recorded on oath. The victim stated that on 12.12.2017 at about 3.00 P.M. when she was playing badminton with her younger sister, the accused-appellant herein came in front of the gate and asked her to search for his hen in their backyard. Victim, P.W.2 stated to have gone to her backyard, when the accused followed her and touched her back and neck. From this untoward incident, the victim stated to Page 10 of 15 have started returning back to their courtyard, when the accused herein again caught her hand and pressed her breast and further asked her whether she would like to have chocolates worth more than Rs.500/- or not. She denied that proposal and returned the money back to her home, whereafter the accused left the place.
In her cross-examination, the victim admitted the fact that the alleged incident took place on 13.12.2017. On questions being put forward, the victim admitted to have not stated before the police that on 12.12.2017 at about 3.00 P.M. she was playing badminton with her sister and friend, when the accused came in front of their gate or that the accused asked her whether she would take chocolate worth more than Rs.500/-, which she refused. She further denied the suggestion that on 12.12.2017 or 13.12.2017, she was not in the house of the parents at Pratapgarh or that the accused did not arrive there in search of his hen. The victim also denied the suggestion that she did not go to their backyard or that the accused did not touch her body or her breasts there.
17. P.W.-3, the informant-father of the victim deposed that on 12.12.2017 at about 3.00 P.M., the accused came to their house in search of his hen and asked the victim Page 11 of 15 to help him. He stated that as the victim went to search the same, the accused touched different parts of her body including her breasts for which, he lodged a complaint before the police.
In the cross-examination, the informant denied the suggestion that on the relevant day, the accused did not ask his victim-daughter to help him search his hen and that he did not touch several parts of her body including her breasts. The informant also denied the suggestion that no such incident took place on 12.12.2017 or that he borrowed the money from the accused-appellant herein and lodged the false case to avoid refund of the same.
18. P.W.-4 the brother of the victim stated that the accused-appellant herein was their neighbour when they used to stay in their rented house at Town Pratapgarh. He stated that on 12.12.2017 after returning back home at about 7.00 P.M. he heard from his victim sister that the accused person herein touched her body and misbehaved with her on that day at about 3.00 P.M. P.W-4 has not been subjected to any cross- examination by the defence.
19. In the light of the evidence of the prosecution witnesses No.1, 2, 3 & 4 it is proved that the accused-appellant Page 12 of 15 herein is the neighbour and known to the family members of the victim girl. As per the evidence of the father and mother of the victim girl i.e. P.W.1 and P.W.2, there was financial transaction between the accused person and the father of the victim girl which has been accepted by P.W.-1, the mother of the victim. The place of occurrence as per the evidence of P.W.2, the victim girl is behind the house but not inside the house. In light of the evidence discussed above, it cannot be said that the accused person had trespassed into the house of the complainant and the victim. The accused person is not a stranger to the family members of the victim girl herein. Thus, the question of attracting Section 447 of the IPC in this instant case does not arise. Accordingly, the conviction of the accused-appellant herein under Section 447 of IPC is set aside.
20. In so far as the conviction under Section 8 of the POCSO Act is concerned, it attracts sexual assault and the definition of sexual assault has been explained in Section 7 and 8 of the POCSO Act which is crucial for consideration with regard to the touching of the breasts of the victim-girl by the accused herein with an intention of sexual assault. The same is reproduced herein-under:-
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" 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.
8. 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."
21. So here in terms of the above-mentioned Sections, the accused person herein with the intention to have a physical relationship with the victim-girl had touched her breasts has not been made out. In view of the same, the presumption under Section 29 of the POCSO Act is not applicable to offence under Section 8 of the POCSO Act Moreover, this Court gives negative finding. Thus, the conviction of the accused person under Section 8 of the POCSO Act is also set aside.
22. In so far as conviction under Section 354 of the IPC is concerned, the victim girl has categorically stated that the accused-appellant herein has touched her breast. The accused person in his examination under Section 313 of Cr.P.C. stated that he is falsely implicated in this case but has not stated that there was a monitory transaction between him and the father of the victim-girl and for that reason, the father of the victim girl to evade the repayment have foisted the case Page 14 of 15 against him. The accused has not explained categorically in Section 313 examination to the Court about his non- involvement except denial of the charges. This Court believes that the accused person had touched the breasts of the victim girl. Here the evidence of the victim girl made under Section 164 of Cr.P.C. as well as before this Court, has not been shaken and the contents of her statement and the evidence remain the same.
23. Accordingly, this Court opines that the accused- appellant herein is guilty of committing offence under Section 354 of IPC.
24. Hence, the accused-appellant herein is sentenced to suffer rigorous imprisonment for a term of 1(one) year and also to pay a fine of Rs.15,000/-(Rupees Fifteen Thousand only). In default of payment of the fine, the convict shall suffer simple imprisonment for a further term of 3(three) months. Accordingly, the sentence of the Court below stands modified.
25. With the above observation and direction, this instant criminal appeal is partly allowed to the extent indicated above and thus disposed of.
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26. Consequently pending application(s), if any, also stand closed.
Send back the LCRs.
JUDGE suhanjit